Non-use of Trademark is here means that when the Trademark is registered in the name of registered proprietor but not in use with respect to the goods and services for which descriptively it was registered for.

There are numbers of rights given to the registered and using trademarks but in case of proprietor not using the registered trademark for a certain period of time becomes the subject to revocation or removal from the trademark registry.

• Section 2(2)(c)[1] establishes and distinguishes the use of trademarks in relation to products and services. Use with regards to the application of the mark to, or any other physical or any other relation with the goods.
• Section 47 talks about the removal or revocation of the trademark on the following grounds:
  
  1. If the trademark was not registered with the bona fide intentions; for example: if 20 classes was registered on one trademark but proprietor is only using 2 out of them.
  2. If the trademark were not in use 3 months prior to the registration and if the same was not in use even after the continuous 5 years after registration.
      

In the case of Rose & Thistle (Plaintiff) v. M/S. J.N. Nichols (Vimto)[2] Limited (Respondent), the Calcutta High Court interpreted the word "USE" in a wider sense and held that "USE" does not necessarily mean and imply the actual physical sale but a mere advertisement without having even the existence of goods can be said to be "USE" of the mark.

• Above mentioned case namely "Rose & Thistle v. Nicholas (Vimto) Ltd.", where petition was filed under Section 46 of the Trade and Merchandise Marks Act, 1958 for removal of the mark "Vinto" registered under the name of J.N Nicholas & Co. Ltd.
• Later, the mark "Wim-to" under the appellant's name was applied for registration. The issue that arose was whether the trademark "Vinto" under the name of J.N Nicholas & Co. Ltd. and now under the name of respondent No. 1 J.N Nicholas (Vimto) Ltd. should be removed from Trademark Registry. And whether the petitioner's application for registration of the mark "Wim-to" should be allowed.
• To which Court held that there's no evidence on records to show that the Respondent no.1 J.N Nicholas (Vinto) Ltd. had not abandoned its intention to use the mark as contemplated under Section 46[3] of the Act.
• Hence, the application for removal of the trademark from trademark registry was granted.
• And in adding onto it, the appellant had all the liberty to proceed with its application for registration of the mark "Wim-to".

In the case of Cadbury, Burger King and M/s Pops Foods Products (p) Ltd. vs. M/s Kellog Co[4], where the IPAB (Intellectual Property Appellate Board) invalidated the Kellog trademark on the grounds of 22 years of non-use, to which Section 47(1)(b) evidently implies that in case of non-use of trademark 3 months prior to the registration and 5 years after the registration, leads to the removal of trademark from the trademark registry.

• The Hon'ble Supreme Court in the Kabushiki Kaisha Toshiba v. TOSIBA Appliances[5] stated that:
  "The intention to use a trade mark sought to be registered must be genuine and real."

The bench further explained that:
"when a trade mark is registered, it confers a valuable right. It seeks to distinguish the goods made by one person from those made by another. The person, therefore, who does not have any bona fide intention to use the trade mark, is not expected to get his product registered so as to prevent any other person from using the same."

Exemptions to the rule of removal of trademark on grounds of non-use:

• If the company of the proprietor is not registered under the Companies Act, and yet to be registered in near future.
• If the proprietor intends the mark to be used by any other registered user. Thus, if he is waiting for the mark to get registered in the name of another registered user or person, then it cannot be removed from the trademark registry.
• If the mistake does not lie on the side of proprietor.
• Proprietor but the non-use of the trademark is due to the special circumstances provided under Section 47(3).

For example: Restrictions on the use of a certain trademark imposed by any law or regulation. Some companies may also require to wait for international or domestic approvals. Thus, in the interim period, they may have an excuse for using the mark.
End Notes:

1. The Trade Marks Act, 1999
2. AIR 1994 CAL (43)
3. The Trade Marks Act, 1999
4. TRA (159) 2004 TM DEL
5. 2008 (37) PTC 394 (SC)