JUDGMENT

Suriyadi Halim Omar JCA:

[1] This appeal emanated from the High Court as a consequence of the dismissal of the applicant's application (hereinafter referred to as the appellant) with costs by the learned judge. After a lengthy hearing this panel had dismissed it with costs. The prayers in the abovementioned application inter alia read as follows:

(1) that the entry in Part A of the Register of Trade Marks in relation to trademark registration no. 92/02266 for "MCLAREN" in class 25 in respect of "articles of clothing including boots, shoes and slippers, all included in class 25" ("the said trade mark registration") be removed and expunged from the Register of Trade Marks pursuant to sections 14, 25, 45 and/or 46(1) of the Trade Marks Act 1976;

(2) in the event that prayer (1) above is granted by this Honourable Court, the Register of Trade Marks be rectified and/or corrected by removing the respondent as the registered proprietor of the said trade mark registration from the Register of Trade Marks;

(3) in the event that prayers (1) and (2) are granted by this Honourable Court, the Registrar of Trade Marks be directed to remove and/or strike off the respondent as the registered proprietor of the said trade mark registration and/or the said trade mark registration be removed and expunged from the Register of Trade Marks;

(4) alternatively, that the entry in Part A of the Register of Trade Marks in relation to the said trade mark registration be amended or varied by partially cancelling the goods "articles of clothing, including" pursuant to section 46(1) of the Trade Marks Act 1976;

(5) in the event that prayer (4) above is granted by this Honourable Court, the Registrar of Trade Marks be directed to amend and vary the said trade mark registration so as to cancel the description of goods "articles of clothing, including" from the said trade mark registration ...

[2] The grounds alluded to by the appellant were, that:

(a) "the said trade mark registration ought to be removed or expunged from the Register of Trade Marks or varied pursuant to section 14 of the Trade Marks Act 1976 as the said trade mark is identical with the applicant's mark and use thereof in respect of articles of clothing, boots, shoes and slippers would cause or is likely to cause confusion or deception amongst the trade and public and the said mark is therefore an entry which was entered without sufficient cause or wrongfully remaining on the Register by virtue of section 45 of the Trade Marks Act 1976;

(b) the said trade mark registration ought to be removed or expunged from the Register of Trade Marks or varied pursuant to section 25 of the Trade Marks Act 1976 as the respondent is not the lawful proprietor of the said trade mark and the said mark is therefore an entry which was entered without sufficient cause or wrongfully remaining on the Register by virtue of section 45 of the Trade Marks Act 1976;

(c) the said trade mark registration ought to be removed or expunged from the Register of Trade Marks or varied pursuant to section 46(1)(a) of the Trade Marks Act 1976 as the respondent has registered the said mark without an intention in good faith on its part to use the said mark in relation to the goods registered, and that there has in fact been no use in good faith of the said mark in relation to those goods by the Respondent up to the date of 1 month before the date of this application filed herein;

(d) the said trade mark registration ought to be removed or expunged from the Register of Trade Marks or varied pursuant to section 46(1)(b) of the Trade Marks Act 1976, the respondent has not used the said mark for a continuous period of not less than 3 years and during which period there was no use in good faith of the said mark in relation to the goods registered by the respondent.

[3] The appellant's affidavit highlighted that it was a company organized and existing under the laws of England with a registered office and place of business at Wokin