Ramly Ali J:

This is an application by the applicant, by way of originating motion, under s. 45(1)(a) and s. 46(1)(a) of the Trade Marks Act 1976 for rectification of the register of trade marks.

In effect, the applicant seeks the court to grant it two main orders, namely:

(i) The 2nd respondent be expunged and removed as Registered User of the " TOYO " mark from the Register of Trade Marks as the entry in the register was made without sufficient cause or an entry wrongfully remaining in the register; and

(ii) that the registered trade mark TOYO' (Trade Mark Registration No: M 081817) in Class 16 'for various types of colour ink for pen, ball pen, and printing ink and stationery " in the name of the 1st respondent be expunged and removed for " non-use " from the Register of Trade Marks, Malaysia.

Brief Background Facts

Since 20 March 1979, the 1st respondent has been Registered Proprietor of the trade mark TOYO' in Class 16 for " various types of colour ink for pen, ball pen and printing ink and stationery', and the said trade mark has been renewed till 28 March 2010.

Since 25 July 2002, the 2nd respondent became a Registered User and has the licence or was authorised to '