( 1 ) THIS is an appeal against the order of Prakash Narain, J. , by which he dismissed the petition filed by the appellant, under Section 56 of the Trade and Merchandise Marks Act 1958, (hereinafter to be called the Act ).

( 2 ) THE appellant filed the petition on the allegation that four registered trade marks in the name of respondent No. 1 be cancelled. The appellant s case is that he manufactures and sells cycle bells for more than 15 years under its distinctive trade mark "five 50". Respondent No. 1 has four registered marks with the trade mark of "0" and "fifty". It was alleged that in 1958 the respondent No. 1 had sought to prevent the appellant from using their trade mark as "five 50" but that injunction was refused. It is maintained that the respon dents have ceased to use the trade mark and have abandoned the said trade mark for more than 5 years preceding one month from the date of petition and therefore the same is liable to be removed from the register.

( 3 ) WHAT brought the appellant to court was a threatened action by one M/s. Cinni Pvt. Ltd. , for allegedly using the trade mark "five 50" alleging that they had a right in it. The respondent countered