upon which the registration of the defensive trade mark is wholly based—
is assigned to a different proprietor without the goodwill of the
(a)
business relating to the goods or services in respect of which that trade mark was
registered; or
(b)
is removed from the Register:
Provided that where a defensive trade mark is removed in terms of
this paragraph if the trade mark upon which its registration was wholly based is
restored to Part A of the Register in terms of subsection (5) of section twenty-four,
the defensive trade mark shall be restored to Part D of the Register.
(6) Except as otherwise expressly provided in this section, this Act shall apply in
respect of the registration of trade marks as defensive trade marks and of trade marks
so registered as they apply in other cases and section eight relating to the
infringement of a trade mark registered in Part A of the Register shall apply to the
infringement of any defensive trade mark registered in terms of this section if that
registration is valid.
33
Registered users
(1) Subject to this section, a person other than the proprietor of a trade mark
registered in Part A or Part B of the Register may be registered as a registered user
thereof in respect of all or any of the goods or services in respect of which that trade
mark is registered.
(2) The use of a trade mark by a registered user thereof in relation to goods or
services—
(a)
with which he is connected in the course of trade; and
(b)
in respect of which for the time being the trade mark remains
registered and he is registered as a registered user;
being use such as to comply with any conditions or restrictions to which his
registration is subject, is in this Act referred to as the “permitted use” thereof.
(3) The permitted use of a trade mark shall be deemed to be use by the proprietor
thereof and shall be deemed not to be use by a person other than the proprietor for the
purposes of section thirty-one and for any other purpose for which such use is
material under this Act or any other law.
(4) Subject to any agreement subsisting between the parties, a registered user of a
trade mark shall be entitled to call upon the proprietor thereof to take proceedings to
prevent infringement thereof and, if the proprietor refuses or neglects to do so within
two months after being so called upon, the registered user may institute proceedings
for infringement in his own name as if he were the proprietor, making the proprietor a
defendant:
Provided that a proprietor added as defendant in terms of this subsection shall not be
liable for any costs unless he enters an appearance and takes part in the proceedings.
(5) Where it is proposed that a person should be registered as a registered user of a
trade mark, the proprietor and the proposed registered user shall apply in writing to
the Registrar in the prescribed manner and shall furnish him with such documents,
information or evidence as may be prescribed or required by the Registrar.
(6) When the requirements of subsection (5) have been complied with, if the
Registrar, after considering the information furnished to him under that subsection, is
satisfied that in all the circumstances the use of the trade mark in relation to the
proposed goods or services or any of them by the proposed registered user, subject to
any conditions or restrictions which the Registrar thinks right, would not be contrary
to the public interest, the Registrar may register the proposed registered user, with
effect from the date of the application or such later date as the Registrar thinks fit, as
a registered user in respect of the goods or services as to which he is so satisfied.
(7) The Registrar shall refuse an application in terms of subsection (5) if it appears to
him that the grant thereof would tend to facilitate trafficking in a trade mark.
(8) Without derogation from section thirty-seven, the registration of a person as a
registered user—