A.N. Ray, J. - (1.) This is an appeal from 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'.
(2.) The appellant on its own showing is registered in many more classes than class 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.
(3.) 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 Sec. 46(1)(a) and under Sec. 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 Sec. 47, a registered trademark 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 Sec. 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 trademark 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 goods.;