Ajoy Noth Ray, J. - (1.) This is an appeal from an order of the Deputy Registrar rectifying only two of the several class 7 entries standing in the name of the appellant, viz. electric washing machines and spin dryers, in respect of the trade mark 'TOSHIBA'. The appellant of its own showing is registered in many more classes than class 7 only, but the registration in class 7 only is in issue in this appeal and I deal only with the same. The appellant has some eight entries registered in that class, including current generators, electric induction motors and compressors, as well as the two rectified entries.
(2.) The registration in class 7 has stood in favour of the appellant from as early as 1971. The application for rectification was made by the respondent as late as in June 1989. The rectification has been sought both under Section 46(1)(a) and under Section 46(1)(b) of our 1958 Act and the relevant portions are as follows : "46. Removal from register and imposition of limitations on ground of non-use.-(1) Subject to the provisions of Section 47, a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved on the ground either:- (a) that the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods by him or, in a case to which the provisions of Section 45 apply, by the company concerned, and that there has, in fact, been no bona fide use of the trade mark in relation to those good by any proprietor thereof for the time being up to a date one month before the date of the application; or (b) that upto a date one month before the date of the application, a continuous period of five years or longer has elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being." The respondent has been successful in the registry upon both the above grounds. Mr. Gautam Chakraborty appearing for the appellant has submitted that the rectification order needs to be modified and his clients are entitled to maintain registration. According to him, the appellants should succeed, upon both the sub- sections (1)(a) and (1)(b) of Section 46 as well as upon the relief granted to non-use for special circumstances in the trade mentioned in sub-section (3) of the said Section 46 which runs as follows: 46(3). An applicant shall not be entitled to rely for the purpose of Clause (b) of sub- section (1) or for the purposes of sub-section (2) on any non-use of a trade mark which is shown to have been due to special circumstances in the trade in relation to the goods to which the application relates."
(3.) Apart from the above Mr. Chakraborty has seriously disputed the locus standi of Mr. Biswarup Gupta's client, that is the respondent. It is argued that an application is not at all maintainable for rectification in regard to the above two goods in class 7 by the respondent.;