The applicant must establish a prima facie case of non-use of a trademark, failing which there is no burden on the respondent to prove use.

[1] This is the applicant's application that the Malaysian Trade Mark Registration No. 97012526 for "NATURELL" in Class 30 be expunged and removed from the Register of Trade Marks, pursuant to ss 45 and/or 46 of the Trade Marks Act 1976 (the Act).

[2] The applicant is in the business of processing and refining of palm oil, manufacturing, distributing, supplying, selling and offering for supply various consumer goods in Malaysia in its current name since 1973 and prior to that in the name of Lam Soon Oil and Soap Manufacturing Sdn Bhd.

[3] The applicant is the owner of the trademark "NATUREL" (hereinafter referred to as the "said trade mark") included in Class 29 products within the applicant's range of products bearing Registration No 91008179.

[4] The applicant has been using the said trademark on its products since the late 1980's. The sales volume and promotional and advertising expenditure of the said trademark are clearly demonstrated in its supporting affidavit.

[5] The respondent is the registered proprietor of the trademark "NATURELL" (hereinafter referred to as the "respondent's trade mark") registered under Class 30 bearing Registration No 97012526.

[6] The applicant, in its attempt to extend and market the use of its trade Mark to include Class 30 products was unsuccessful when its application to register the "Naturel & Device" trade mark was objected, inter alia, on the basis that the mark is identical or confusingly similar to the respondent's trade mark, and as such, contrary to s 14(1)(a), s 19(1) and s 19(2) of the Act. The applicant filed a written submission against the examiner's objection on 29 September 2008 and is pending the examiner's decision.

[7] The respondent's trademark "NATURELL" registered under Class 30 bearing Registration No 97012526 since 4 September 1997 is the subject matter, which was relied on by the examiner in raising an objection to the applicant's application.

[8] Now, the main basis for the applicant in filing this application is due to the non-use by the respondent for any of the respondent's products under the Class 30 range of products.

[9] The first question for determination is whether the applicant is a person aggrieved by the respondent's trademark "NATURELL". Learned counsel for the respondent argued that the applicant did not have the locus standi to file the present action, as the applicant was not a "person aggrieved" within s 46(1) of the Act. He referred to the judgment of the Federal Court in McLaren International Limited v. Lim Yat Meen , 2009 MarsdenLR 960 . He argued that since the decision of the Federal Court, "persons aggrieved" was given a more stringent approach. It is true in that case, the Federal Court held that it could not be right the mere filing of its application can confer the necessary locus standi on the applicant for rectifying proceedings. However, the facts in the present case are somewhat different. The applicant has a registered mark "NATUREL" and there has been substantial use of this mark by the applicant in Class 29 products. There is goodwill in the applicant's Class 29 "NATUREL" mark. With the intention to market different products using the applicant's "NATUREL" mark, the applicant had embarked on registering its intended mark in Class 30. The applicant had taken preparatory steps and made the application to register the intended mark. Therefore, the case of McLaren International Limited v. Lim Yat Meen is distinguishable and not applicable on the facts in the present case. In my view, the applicant on the facts of the present case is clearly an aggrieved person as it is substantially interested in having the mar