Trade Marks Act, 1993 (Act No. 194 of 1993)Part X : Permitted Use and Registered Users38. Permitted use and registered users |
| (1) | Where a registered trade mark is used by a person other than the proprietor thereof with the licence of the proprietor, such use shall be deemed to be permitted use for the purposes of subsection (2). |
| (2) | The permitted use of a trade mark referred to in subsection (1) shall be deemed to be use by the proprietor and shall not be deemed to be use by a person other than the proprietor for the purposes of section 27 or for any other purpose for which such use is material under this Act or at common law. |
| (3) | Subject to the provisions of this section, a person, other than the proprietor of a registered trade mark, who uses such trade mark with the licence of the proprietor, may be registered as a registered user thereof in respect of all or any of the goods or services in respect of which the trade mark is registered. |
| (4) | Subject to any agreement subsisting between the parties, a registered user of a registered trade mark shall be entitled to call upon the proprietor thereof to institute infringement proceedings, and, if the proprietor refuses or neglects to do so within two months after being so called upon, the registered user may institute proceedings, as contemplated in section 34, in his own name as if he were the proprietor, citing the proprietor as a co-defendant, but a proprietor so cited shall not be liable for any costs unless he enters an appearance and takes part in the proceedings. |
| (5) | In all proceedings relating to a registered trade mark, the registration of a person as a registered user shall be prima facie evidence that the use of the registered trade mark by him is permitted use as contemplated by subsection (1) |
| (6) | Where it is proposed that a person shall be registered as a registered user of a trade mark, the proprietor shall apply in writing to the registrar in the prescribed manner giving particulars of— |
| (a) | the name and address of the proposed registered user; |
| (b) | the relationship, existing or proposed, between the proprietor and the proposed registered user; and |
| (c) | the goods or services in respect of which the person is to be registered as a registered user of the trade mark. |
| (7) | When the requirements of subsection (6) have been complied with, the registrar shall register the proposed registered user as a registered user in respect of the relevant goods or services. |
| (8) | Without derogating from the provisions of section 24, the registration of a person as a registered user— |
| (a) | may be cancelled or varied by the registrar on application in writing in the prescribed manner by the registered proprietor or by such registered user or by any other registered user of the trade mark; and |
| (b) | shall be cancelled by the registrar where the trade mark in respect of which such person has been registered has been assigned and application has in terms of section 40 been made for registration of the assignment, unless the subsequent proprietor registered in terms of the said section requests the registrar in the prescribed manner not to cancel any such registration and furnishes the registrar with the particulars referred to in paragraph (b) of subsection (6). |
| (9) | The registrar may at any time cancel the registration of a person as a registered user of a trade mark, in respect of any goods or services in respect of which the trade mark is no longer registered. |
| (10) | The provisions of this section shall also apply to all trade marks registered under the repealed Act. |