38
CAP. 506
Trade Marks
[Rev. 2009
the decision of the Registrar on any such opposition shall be subject to
appeal to the court.
(4) ( Deleted by 39 of 1962, s. 5.)
Part VII - Certification Trade Marks
Certification trade
marks.
40. (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, mode 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, the
court or the Registrar may have regard to the extent to which –
(a) the mark is inherently adapted to distinguish 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 in relation to the
goods in question.
(3) Subject to the provisions of subsections (4), (5) and (6) of
this section, and of sections 10 and 11, 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, and, without prejudice to the generality of the
foregoing words, that right shall be deemed to be infringed by any person
who, not being the proprietor of the trade mark or a person authorized by
him under the regulations in that behalf using it in accordance therewith,
uses a mark identical with it or so nearly resembling it as to be likely
to deceive 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 use 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
authorization under the relevant regulations to use the trade