The onus of proving that there were special circumstances which excused the non-user of a trademark lay on the registered proprietor of the mark.

U. C. BANERJEE, J.

( 1 ) BOTH the English Act of 1938 (Trademarks Act, 1938) and the Indian Act of 1958 (The Trade and Merchandise Marks Act, 1958) are in pari materia with each other in regard to the availability of a defence of special circumstances in the matter of an application for removal of a registered mark from the register of marks. For convenience's sake sections 26 (1) and 26 (3) of the English Act and sections 46 (1) (b) and 46 (3) of the Indian Act are set out hereunder. "26. (1) Subject to the provisions of the next succeeding section, 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 by any person aggrieved to the Court or, at the option of the applicant and subject to the provisions of section fifty-four of this Act, to the Registrar, on the ground either- (a)that the trademark 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, and that there bas in fact been no bona fide use of the trademark in relation to those goods by any proprietor thereof for the time being up to the date one month before the date of the application ; or (b)that up to the date one month before the date of the application a continuous period of five years or longer elapsed during which the trademark was a registered trademark and during which there was not bona fide use thereof in relation to those goods by any proprietor thereof for the time being : provided that (except where the applicant has been permitted under sub-section (2) of section twelve of this Act to register an identical or nearly resembling trademark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to register such a trademark) the tribunal may refuse an application made under paragraph (a) or (b) of this sub-section in relation to any goods, if it is shown that there has been, before the relevant date or during the relevant period, as the case may be, bona fide use of the trademark by any proprietor thereof for the time being in relation to goods of the same description, being goods in respect of which the trademark is registered. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) An applicant shall not be entitled to rely for the purposes of paragraph (b) of sub-section (1) or for the purposes of sub-section (2), of this section on any non-use of a trademark that is shown to have been due to special circumstances in the trade and not to any intention not to use or to abandon the trademark in relation to the goods to which the application relates. "46. Removal from register and imposition of Limitations on ground of non-use (1) Subject to the provisions of Section 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 trademark was registered without any bona fide intention on the part of the applicant for registration that it should he 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 bow fide use of the trademark in relation to those goods by any proprietor thereof for the time being up to a date one month before the date of the application ; or (b)that up to 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 : provided that, except where the applicant has been permitted under sub-section (3)

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