The grounds for removal of a registered trade mark under S. 46(1)(a) of the Trade and Merchandise Marks Act, 1958, are 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 and that there has been no bona fide use of the trade mark 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.

VEERASWAMI, C. J.:- These two related appeals arise from an order of Gokulakrishnan J. who declined to interfere with a common order of the Assistant Registrar of Trade Marks in M. A. S. Nos. 127 and 128.

2. The first appellant had registered on 1-1-1970 a trade mark under the name and style of Omar Khayyam Hotel Restaurant and Bar'. The respondent was called on by the Assistant Registrar to file any objections to the application of the first appellant since the respondent was using the mark 'Omar Khayyam Wineries (P.) Ltd.' But no objections were filed. The respondent, however, on 10-1-1970, applied to the Assistant Registrar under S. 46 of the Trade and Merchandise Marks Act, 1958, for rectification of the trade mark of the first appellant, registered and notified in the Trade Mark Journal on the date aforesaid. This application was resisted by the first appellant, but all the same was allowed by the Assistant Registrar. Gokulakrishnan J. declined to interfere.

3. The facts briefly are these: On 16-11-1965, there was an advertisement in the Deccan Chronicle by the Omar Khayyam Hotel Restaurant and Bar. This notice said that this name and style had been used by the first appellant for his catering business at Hyderabad and that the expression 'Omar Khayyam' he was using also has a principal feature in his trade mark for the bakery, biscuits, pastry, tea, coffee, beer, ale and porter for mineral and aerated waters and other non-alcoholic drinks, wines, spirits and liquors falling under classes 30, 32 and 33 of the Fourth Schedule to the Trade and Merchandise Marks Rules, 1959, framed under the Act. The notice further announced that Omar Khayyam Hotel, Restaurant and Bar alone was entitled to use the name and style by virtue of adoption, investion and user as provided under the Act. It warned that any person or persons either imitating or in any manner making a colourable imitation of the aforesaid trading style or trade mark would make himself or themselves liable for both civil and criminal actions. Earlier on 15-12-1965, the first appellant's assignor of the trade mark had applied through its authorised agent one R. D. Sinha for registration of a trade mark under class 33 of the Fourth Schedule to the Rules under the Act in respect of wines, spirits, and liquors, in the name of Agha Hyder Hussain National, manufacturer and trader, trading as Omar Khayyam Hotel, Restaurant and Bar. It was said there that this mark had been continuously used since 1-4-1964, in respect of the said goods.

4. S. 46 (1) (a) of the Trade and Merchandise Marks Act, 1953 reads -

"(1) Subject to the provisions of S. 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 S. 45 apply, by the company concerned, and that there has, in fact, been no bond fide use of the trade mark 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 cl. (b) of the proviso and the rest of the section are not necessary to notice for our present purpose."

5. A 'trade mark' as defined in S. 2 (v) means a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark; and in relation to the other provisions of the Act, except Chapter X, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to include a connection in the course of trade between the goods and some person having the right, eit