JUDGMENT

Azizah Nawawi J:

The Application

[1] Enclosure (1) is the plaintiff's application under s 46(1)(a) and/or (b) Trade Marks Act 1976 ("TMA 1976") to rectify the trade marks register by removing and/or cancelling the defendant's trade mark registrations, which are as follows:

[2] The grounds of the application are as follows:

(i) The plaintiff is an aggrieved person as stipulated under the TMA 1976;

(ii) Aside from the defendant's marks being registered in Malaysia in bad faith, the defendant did not initiate any use of the "AL BAIK" trade mark in good faith or at all with any of the defendant's malaysian registrations in respect of any goods or services that have been registered in Malaysia at all material times, contrary to s 46(1)(a) of the TMA; and/or

(iii) Contrary to s 46(1)(b) of the TMA, the defendant has not used the mark in question for a continuous period of not less than three years plus one month in relation to the registered goods or services.

[3] After hearing the parties, the plaintiff's application was allowed with costs.

The Salient Facts

[4] The plaintiff is a company based in Egypt and has registered its trade mark in Egypt and has operated its restaurant business under the "AL BAIK" trade mark in Egypt since 2000. The plaintiff had since expanded its business in the Middle East and Asia. The plaintiff has also registered the said mark in Kenya, South Africa, India, China, Iran and Ethiopia.

[5] The plaintiff created the using the word "AL BAIK", with a smiling chicken wearing a "tarboush", a traditional head cover commonly used in Egypt. The mark also includes the chicken device performing a "welcoming salute" by raising the tarboush.

[6] The plaintiff filed its trade mark application in Malaysia in Class 29 and 16 and the same has been registered since 2005.

[7] Since early 2014, the plaintiff has been using its trade mark in fast food restaurants in Jalan Bukit Bintang and Setapak, Kuala Lumpur and in Shah Alam.

[8] The defendant is a company based in Saudi Arabia and started its food and restaurant business in Jeddah, Saudi Arabia in 1970. The defendant also has restaurants in Makkah Al Mukarama and Al Medina Al Munawarah, the holy lands where pilgrims from all over the world go for their pilgrimage.

[9] The defendant has registered its trade mark in Saudi Arabia in 1987 and have since expanded to other countries including Europe and the United States of America.

[10] In Malaysia, the defendant has registered its trade mark in 1997. Details of the defendant's registered trade marks in Malaysia are as follows:

[11] The defendant had initiated the Originating Summons No: 24IP-17- 04-2014 against the plaintiff in order to expunge the plaintiff's trade marks pursuant to s 45 of the TMA 1976. The said claim was allowed by this court.

[12] It is also not in dispute that the plaintiff had initially counterclaimed against the defendant in Originating Summons No: 24IP-17-04-2014, seeking to expunge the defendant's trade marks under s 46 of the TMA 1976. The counterclaim was withdrawn with liberty to file afresh. Therefore, on 5 December 2014, the plaintiff has filed this application to expunge the defendant's trade marks under s 46 of the TMA 1976 on the basis of non-use.

[13] After hearing the parties, this court has allowed the plaintiff's application to expunge the defendant's trade marks on the basis on non-use pursuant to s 46 of the TMA 1976.

The Findings Of The court

[14] It is common ground that the issues in this case are:

(i) whether the plaintiff is an aggrieved person within the meaning of s 46(1) of the TMA 1976; and

(ii) whether the defendant's trade marks should be expunged for nonuse.

[15] The plaintiff's application is premised on s 46(1)(a) and/or (b) of the TMA 1976 which reads as follows:

"Provisions as to non-use of trade mark

46. (1) Subject to this section and to , the court may, on application by a person aggrieved, order a trade mark to be removed from the Reg