A trade mark can be expunged for non-use; a party aggrieved must demonstrate genuine intent to use the mark in the relevant market.

[1] This is another application to expunge a trade mark for non-use that came before me after the case of Samsung Electronics Co Ltd v. Orient Co Ltd and Hao Pin Wei Biotech Food Co Ltd v. Hai Pa Wang International Group Corp .

[2] The Plaintiff is an incorporated company under laws of Sweden and part of the Essity Group which includes Vinda Malaysia Sdn Bhd ("VM") which is a subsidiary of Vinda International Holdings Ltd which is in turn a subsidiary of the Plaintiff.

[3] VM is a licensed manufacturer, importer and distributor of the products offered by the Essity Group which amongst others includes incontinence care products such as adult under pads and diapers, consumer tissues, etc.

[4] The Plaintiff has applied to the Registrar of Trade Marks constituted pursuant to the Trade Marks Act 1976 (" TMA ") to register the following trademark ("Mark") in Class 3 in respect of skin care products and Class 5 in respect of sanitary products:

[5] The Defendant (which should correctly be spelt as Praba's VCare Health Clinic Private Limited) is a company incorporated under the laws of India and part of the VCare Group founded by Mrs Carolin Praba which includes VCare Pharcos Ptd Ltd ("VP") and v. Care Herbal Concepts (M) Sdn Bhd ("VH"). The Defendant is involved in the business of treating and dealing with equipment for the treatment of hair and skin related products.

[6] The mis-spelt Defendant is the registered proprietor of the following trade mark ("Impugned mark") in Class 3 in respect of skin products and Class 5 in relation to medical services products:

[7] The Plaintiff has brought this application by way of originating summons dated 24 July 2018 ("Application") praying for the following reliefs:

1. A declaration that the registered trade mark under Trade Mark NO 2012060381 for in Class 3 by the Defendant (the "Defendant's Registered Mark") in relation to the goods, "Skin cleaners (cosmetic); skin toners; facial washes (cosmetic); moisturising skim creams (cosmetic); exfoliants for the cleansing of the skin; facial scrubs (cosmetic); body soaps; body shampoos; shower gel; sun screens; sun blocks; massage creams, not medicated; moisturising gels (cosmetic); serum (cosmetic preparations); anti cellulite reparations; non-medicated preparations for use on the hands; cocoa butter in the form of creams and lotions; non-medicated massage preparations; deodorant preparations for personal use; perfumes; body talcum powder; non-medicated talcum powder; make up preparations, hair oils, non-medicated hair care products; shampoos, hair cleaning preparations; hair treatment preparations; hair styling preparations; hair condition preparations; hair coloring preparations, spa preparations; non-medicated baby care products; baby bath preparations (non-medicated); all included in class 3" (the "Defendant's Goods")

(i) was registered without any intention in good faith, on the part of the Defendant, to use the Defendant's Registered Mark in relation to all of the Defendant's Goods and that there has been in fact no use in good faith of the Defendant's Registered Mark by the Defendant in relation to all of the Defendant's Goods for the time being up to the date of one month before the date of the Origination Summons herein; or

(ii) that up to 1 month before the date of the Origination Summons herein, a continuous period of not less than 3 years had elapsed during which there has been no use in good faith of the Defendant's Registered Mark in relation to all of the Defendant's Goods by the Defendant; or

(iii) was registered without any intention in good faith, on the part of the Defendant to use