12493-1909-Bills-read-a-first-time--Appropriation- — Page 16

794 THE HONGKONG GOVERNMENT GAZETTE, OCTOBER 8, 1909.

Con-user of trade mark,

Power of registered proprietor.

Rights of

proprietor of trade mark.

Registration to be prima

fucie evidence of validity.

Registration to be

conclusive after seven years.

38. A registered trade mark may, on the application to the Court of any person aggrieved, be taken off the re- gister in respect of any of the goods for which it is regis- tered, on the ground that it was registered by the pro- prietor or a predecessor in title without any bona fide” in- tention to use the same in connection with such goods, and that there has in fact been no bonâ fide user of the same in connection therewith, or on the ground that there has been no bonâ fide user of such trade mark in connee- tion with such goods during the five years immediately preceding the application, unless in either case such non- user is shown to be due to special circumstances in the arade, and not to any intention not to use or to abandon such trade mark in respect of such goods.

Provided that if the registered owner proves that sneh trade mark is on the register of trade marks in any part of the British Dominions and is in use in such part the Court shall not entertain the application.

Effect of Registration.

39. Sabject to the provisions of this Ordinance :-

(1) The person for the time being entered in the register as proprietor of a trade mark shall, subject to any rights appearing from such re- gister to be vested in any other person, have power to assign the same, and to give effectual receipts for any consideration for such assign-

ment.

(2) Any equities in respect of a trade mark may be enforced in like manner as in respect of any other property.

40. Subject to the provisions of section 42 of this Ordin- ance and to any limitations and conditions entered upon the register, the registration of a person as proprietor of a trade mark shall, if valid, give to such person the exclusive right to the use of such trade mark upon or in connection with the goods in respect of which it is registered; Pro- vided always, that where two or more persons are regis- tered proprietors of the same (or substantially the same) trade mark in respect of the same goods, no rights of ex- elusive user of such trade mark shall be acquired by any one of such persons as against any other by the registru- tion thereof, but each of such persons shall otherwise have the same rights as if he were the sole registered proprietor

thereof.

41. In all legal proceedings relating to a registered trade mark (including applications under section 36 of this Ordineince) the fact that a person is registered as proprietor of such trade mark shall be primâ fœcie evidence of the validity of the original registration of such trade mark and of all subsequent assignments and transmissions of the same.

42. In all legal proceedings relating to a registered trade mark (including applications under section 36 of this Ordinance) the original registration of such trade mark shall after the expiration of seven years from the date of such original registration for seven years from the passing of this Ordinance, whichever shall last happen) be taken to be valid in all respects unless such original registration was obtained by fraud or unless the trade mark offends against the provisions of section 11 of this Ordinance.

Provided that nothing in this Ordinance shall entitle the propristor of a registered trade mark to interfere with or restrain the user by any person of a similar trade mark upon or in connection with which such person has, by himself or his predecessors in business, continnonsly used such trade mark from a date anterior to the user of the first mentioned trade mark by the proprietor thereof or his predecessors in business, or to object (on such user being proved) to such person being put upon the Register for such similar trade mark in respect of such goods under the provisions of section 21 of this Ordinance.

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