Mahadev Shankar JCA:

[1] The appellant Lim Yew Sing ('Lim') is the registered proprietor of the Trade Mark No M/91626 "HUMMEL and Device" ('the Trade Mark'). It was registered on 13 August 1981 in the name of Gurdip Kaur trading as Sykt Hardial Singh. The Trade Mark and all goodwill attaching thereto was assigned to Lim for valuable consideration by Gurdip Kaur on 15 August 1990. It consists of the word 'HUMMEL' accompanied with a half-moon device.

[2] Pursuant to a motion filed by the respondent on 5 November 1993, the Kuala Lumpur High Court made an order on 1 March 1995 that the Trade Mark "HUMMEL" is and was at all material times the property of the respondent; that the Trade Mark "HUMMEL" under Registration No M/91627 was an entry made in the Register without sufficient cause and/or is an entry wrongfully remaining in the Register, and it was further ordered that the Register be rectified by expunging therefrom part of the entry relating to the Trade Mark and that upon service of the order upon the Registrar he do rectify the Register accordingly.

[3] In the first instance it was alleged that Gurdip Kaur was fraudulent in registering the Trade Mark. Subsequently it was co