1954-HKRS29-8-21_Part04 — Page 14

Proceedings

fringement.

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(4) When the requirements of subsection (3) have been complied with, if the Registrar, after considering the information furnished to him under that subsection, is satisfied that in all the circumstances the use of the trade mark in relation to the proposed goods or any of them by the proposed registered user subject to any conditions or restrictions which the Registrar thinks proper would not be contrary to the public interest, the Registrar may register the proposed registered user as a registered user in respect of the goods as to which he is so satisfied subject as aforesaid.

(5) The Registrar shall refuse an application under the provisions of subsections (1) to (3) if it appears to him that the grant thereof would tend to facilitate trafficking in a trade mark.

(6) The Registrar shall, if so required by the applicant, take steps for securing that information given for the purpose of an application under the provisions of subsections (1) to (3) (other than matter mitered in the register) is not disclosed to rivals in Ue trade.

58. (1) Subject to any agreement subsisting between the for in- parties, a registered user of a trade mark shall be entitled to call upon the proprietor thereof to take proceedings to prevent infringe- ment thereof, and, if the proprietor refuses or neglects to do so within two months after being so called upon, the registered user may institute proceedings for infringement in his own name as if he were the proprietor, making the proprietor a defendant.

Variation or cancella- tion of registra- tion as a registered user.

(2) A proprietor so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.

60. (0) Without prejudice to the provisions of section 48, the registration of a person as a registered user-

(a) may be varied by the Registrar as regards the goods in respect of which, or any conditions or restrictions subject to which, it has effect, on the application in writing in the prescribed manner of the registered proprietor of the trade mark to which the registration relates;

(b) may be cancelled by the Registrar on the application in

writing in the prescribed manner of the registered pro- prietor or of the registered user or of any other registered user of the trade mark; or

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(c) may be cancelled by the Registrar on the application in writing in the prescribed manner of any person on any of the following grounds, that is to say—

(1) that the registered user has used the trade mark otherwise than by way of the permitted use, or in such a way as to cause, or to be likely to cause, deception or confusion:

(i) that the proprietor or the registered user mis- represented, or failed to disclose, some fact material to the application for the registration, or that the circum- stances have materially changed since the date of the registration;

(iii) that the registration ought not to have been effected having regard to rights vested in the applicant by virtue of a contract in the performance of which he is interested. (2) The Registrar may at any time cancel the registration of a person as a registered user of a trade mark in respect of any goods in respect of which the trade mark is no longer registered.

61. Provision shall be made by the rules for the notification Notification of the registration of a person as a registered user to any other of regis

tration as registered user of the trade mark, and for the notification of an registered application under section Go to the registered proprietor and each user and of

application registered user (not being the applicant) of the trade mark, and for varia for giving to the applicant un such an application, and to all tion or persons to whom such an application is notified and who intervene of such

registra- in the proceedings in accordance with the rules, an opportunity of being heard.

cancellation

62. Any decision of the Registrar under sections 58 and 60 Registrar's shall be subject to appeal to the Court.

decision subject to appeal to Court.

63. Nothing in sections 58, 59 and 6o shall confer on a Right to registered user of a trade mark any assignable or transmissible use not right to the use thereof.

Certification Trade Marks.

assignable or trans- missible.

64. (1) A mark adapted in relation to any goods to dis- Marks tinguish in the course of trade goods certified by any person in registrable as certifica respect of origin, material, mode of manufacture, quality, accuracy tion trade or other characteristic, from goods not so certified shall be

marks.