Section 43 Trade Marks Act 1967

Section 43 of the Trade Marks Act 1967 is about Certification trade marks. It is under ‘Certification trade marks’ of the Act. It provides as follows:

(1) A mark adapted in relation to any goods to distinguish in the course of trade
goods certified by any person in respect of origin, material, method of manufacture,
quality, accuracy or other characteristic, from goods not so certified, shall be registrable as a certification trade mark in Part A of the register in respect of those goods in the name, as proprietor thereof, of that person:

Provided that a mark shall not be so registrable in the name of a person who carries
on a trade in goods of the kind certified.

(2) In determining whether a mark is adapted to distinguish as aforesaid, the tribunal
may have regard to the extent to which-
(a) the mark is inherently adapted to distinguish as aforesaid in relation to the
goods in question; and
(b) by reason of the use of the mark or of any other circumstances, the mark is in
fact adapted to distinguish as aforesaid in relation to the goods in question.

(3) Subject to the provisions of subsections (5) and (6) of this section, and of sections 7 and 8 of this Act, the registration of a person as proprietor of a certification trade mark in respect of any goods shall, if valid, give to that person the exclusive right to the use of the trade mark in relation to those goods.

(4) Without prejudice to the generality of the right to the use of a certification trade
mark given by such registration as aforesaid, that right shall be taken to be infringed by any person who, not being the proprietor of the trade mark or a person authorised by him under the rules in that behalf using it in accordance therewith, uses a mark identical with it or so nearly resembling it as to be likely to decei ve or cause confusion, in the course of trade, in relation to any goods in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken either-
(a) as being used as a trade mark; or

(b) in a case in which the use is use upon the goods or in physical relation thereto
or in an advertising circular or other advertisement issued to the public, as importing a reference to some person having the right either as proprietor or by his authorisation under the relevant rules to use the trade mark or to goods certified by the proprietor.

(5) The right to the use of a certification trade mark given by such registration as
aforesaid shall be subject to any conditions or limitations entered on the register, and the use of any such mark as aforesaid in any circumstances to which, having regard to any such limitations, the registration does not extend, shall not constitute an infringement of that right.

(6) Where a certification trade mark is one of two or more registered trade marks that are identical or nearly resemble each other, the use of any of those trade marks in exercise of the right to the use of that trade mark given by registration shall not constitute an infringement of the right to the use of any other of those trade marks so given.

(7) There shall be deposited at the office of the Registrar in respect of every trade
mark registered under this section, rules approved by the Minister for governing the use thereof, which shall include provisions as to the cases in which the proprietor is to certify goods and to authorise the use of the trade mark, and may contain any other provisions that the Minister may require or permit to be inserted therein (including provisions conferring a right of appeal to the Registrar against any refusal of the proprietor to certify goods or to authorise the use of the trade mark in accordance with the rules).

(8) Rules deposited under subsection (7) of this section, shall be open to inspection in like manner as the register.

(9) A certification trade mark shall not be assignable or transmissible otherwise than with the consent of the Minister.

(10) The provisions of the First Schedule of this Act shall have effect with respect to
the registration of a mark under this section and to marks so registered.

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