Abdul Aziz Mohamad FCJ:

[1] The respondent has been the registered proprietor of the trade mark "McLaren" (Trade Mark No 9202266) since 11 April 1992, when he applied for registration of the trade mark. The approval of the registration had retrospective effect from that date. The registration is in respect of "articles of clothing, including boots, shoes and slippers" in Class 25.

[2] Over seven years later, on 11 August 1999, the appellant company, claiming to be the bona fide proprietor of the trade mark "McLaren", filed application No 9907641 for registration of the trade mark in respect of "articles of clothing, footwear and headgear" in Class 25.

[3] On 16 February 2001, the Registrar of Trade Marks informed the appellants that their application contravened s 19(1) of the Trade Marks Act 1976 ("the Act") in that the trade mark whose registration the appellants sought was identical with the respondent's registered trade mark or so nearly resembled the respondent's registered trade mark as was likely to deceive or cause confusion. s 19(1) prohibits the registration of such a trade mark in respect of any goods or description of goods.

[4] On 3 March 2003, the appellants, by notice of originating motion, applied for an order expunging totally the entry of the respondent's Trade Mark No 9202266 from the Register of Trade Marks. For this relief the appellants cited ss 14 ,19, 25 , 45 and 46(1) of the Act. Alternatively, relying on s 46(1) only, the appellants sought an order varying the entry by the deletion of the words "articles of clothing, including" from the description of the goods to which the respondent's trade mark relates.

[5] It is useful to state what the sections on which the appellants' application relied are about. By s 45 the High Court, on the application of any "person aggrieved" by, inter alia, "any entry made in the register without sufficient cause or... any entry wrongfully remaining in the register", is empowered to "make such order for... expunging or varying such entry as it thinks fit". This is provided in para (a) of s 45(1). It is about expunging or varying an entry that is shown, after the entry was made, to be an entry that, for some reason or other, was a wrongful entry.

[6]s 46(1) provides as follows:

(1) Subject to this section and to s 57 , the Court may, on application by a person aggrieved, order a trade mark to be removed from the Register in respect of any of the goods or services in respect of which it is registered on the ground:

(a) that the trade mark was registered without an intention in good faith, on the part of the applicant for registration or, if it was registered under s 26 , on the part of the body corporate or registered user concerned, to use the trade mark in relation to those goods or services and that there has in fact been no use in good faith of the trade mark in relation to those goods or services by the registered proprietor or registered user of the trade mark for the time being up to the date one month before the date of the application; or

(b) that up to one month before the date of the application a continuous period of not less than three years had elapsed during which the trade mark was a registered trade mark and during which there was no use in good faith of the trade mark in relation to those goods or services by the registered proprietor or registered user of the trade mark for the time being.

It empowers the Court, that is the High Court, on the application of a "person aggrieved" to order a trade mark to be removed from the register for reason of non-use. The grounds in paras (a) and (b) are independent alternative grounds that are not related to one another.