(1) Subject to the provisions of this article, a person other than the proprietor of a trade mark may be registered as a registered user in respect of all or any of the goods or services in respect of which it is registered (otherwise than as a defensive trade mark) and either with or without conditions or restrictions.
The use of a trade mark by a registered user in relation to goods or services with which he or she is connected in the course of trade and in respect of which for the time being the trade mark remains registered and he or she is registered as a registered user, being use such as to comply with any conditions or restrictions to which his or her registration is subject, is in this Title referred to as the “permitted use”.
(2) The permitted use of a trade mark shall be deemed to be use by the proprietor and shall be deemed not to be use by a person other than the proprietor, for the purposes of article 698 of this Code and for any other purpose for which such use is material under this Title or at common law.
(3) Subject to any agreement subsisting between the parties, a registered user of a trade mark shall be entitled to call upon the proprietor, and, if the proprietor refuses or neglects to do so within 2 months after being so called upon, the registered user may institute proceedings for infringement in his or her own name as if he or she were the proprietor, making the proprietor a defendant.
A proprietor so added as defendant shall not be laible for any costs unless he or she enters an appearance and takes part in the proceedings.
(4) 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 must apply in writing to the Registrar in the prescribed manner and must furnish him or her with a statutory declaration made by the proprietor, or by some person authorised to act on his or her behalf and approved by the Registrar—
(a) giving particulars of the relationship, existing or proposed, between the proprietor and the proposed registered user, including particulars showing the degree of control by the proprietor over the permitted use which their relationship will confer and whether it is a term of their relationship that the proposed registered user shall be the sole registered user or that there shall be any other restriction as to persons for whose registration as registered users application may be made;
(b) stating the goods or services in respect of which registration is proposed;
(c) stating any conditions or restrictions proposed with respect to the characteristics of the goods or services, to the mode or place of permitted use, or to any other matter; and
(d) stating whether the permitted use is to be for a period or without limit of period, and, if for a period, the duration;
and with such further documents, information or evidence as may be required under the rules or by the Registrar.
(5) When the requirements of the last foregoing paragraph have been complied with, if the Registrar, after considering the information furnished to him or her under that paragraph, 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 proper would not be contrary to the public interest, the Registrar may register the proposed registered user as a registered user in respect of the goods or services as to which he or she is so satisfied subject as aforesaid.
(6) The Registrar shall refuse an application under the foregoing provisions of this article if it appears to him or her that the grant would tend to facilitate trafficking in a trade mark.
(7) The Registrar shall, if so required by an applicant, take steps for securing that information given for the purposes of an application under the foregoing provisions of this article (other than matter entered in the register) is not disclosed to rivals in trade.
(8) Without prejudice to the provisions of article 717 of this Code, the registration of a person as a registered user—
(a) may be varied by the Registrar as regards the goods or services in respect of which, or any conditions or restrictions subject to which, it has effect, on the application in writing in the prescribed manner of the registered proprietor of the trade mark to which the registration relates;
(b) may be cancelled by the Registrar on the application in writing in the prescribed manner of the registered proprietor or of the registered user or of any other registered user of the trade mark; or
(c) may be cancelled by the Registrar on the application in writing in the prescribed manner of any person on any of the following grounds, that is to say—
(i) that the registered user has used the trade mark otherwise than by way of the permitted use, or in such a way as to cause, or to be likely to cause, deception or confusion,
(ii) that the proprietor or the registered user misrepresented, or failed to disclose, some fact material to the application for the registration, or that the circumstances have materially changed since the date of the registration,
(iii) that the registration ought not to have been effected having regard to rights vested in the applicant by virtue of a contract in the performance of which he or she is interested.
(9) Provision shall be made by the rules for the notification of the registration of a person as a registered user to any other registered user of the trade mark and for the notification of an application under the last foregoing paragraph to the registered proprietor and each registered user (not being the applicant) of the trade mark, and for giving to the applicant on such an application, and to all persons to whom such an application is notified and who intervene in the proceedings in accordance with the rules, an opportunity of being heard.
(10) 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.
(11) Any decision of the Registrar under the foregoing provisions of this article shall be subject to appeal to the Court.
(12) Nothing in this article shall confer on a registered user of a trade mark any assignable or transmissible right to the use.
(Amended by Act 14 of 1989)