TP/NII IGHA/T/l
Page 29
(2) In determining whether a mark is adapted to distinguish
any goods as described in subsection (1) of this section the Court
or the Registrar (as the case may be) may have regard to the extent
to which(a) the -mark is inherently adapted so 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 so to distinguish
in relation to the goods in question,
-
(3) Subject to subsections (5) to (7) 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 subsection (3), the
right referred to in that subsection shall be deemed 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 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-e(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 :aathorisalionunaer tke '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 virtue of subsection (3) of this section by registration shall be
subject to any conditions or _limitations .entered on the register,
and shall not be deemed to be infringed by the use of any such mark
as is referred to in subsection (4) of this section in any mode,
in relation to goods to be sold or otherwise traded in in any place,
in relation to goods to be exported to any market, or in any other
circumstances, to which, having 'regard to any such Iimitations,
the registration does not extend..
(6) The said right shall not be deemed to be infringed by
the use of any such mark <by any person-