[2017] 3 MLRA 1
Federal Court, Putrajaya
Arifin Zakaria CJ, Ahmad Maarop, Ramly Ali, Balia Yusof Wahi, Jeffrey Tan FCJJ
[Civil Appeal No: 02(i)-57-09-2015]
Arifin Zakaria CJ, Ahmad Maarop, Ramly Ali, Balia Yusof Wahi, Jeffrey Tan FCJJ

Trade Mark : Application to expunge from register - Rectification action under s 46(1)(b) Trade Marks Act 1976 - Whether there was aggrieveness to sustain said action against a registered trade mark in a given class when non-use is purportedly shown regarding goods of another registered mark in a different class of the same registered owner - Section 46(1)(b) - 'continuous period of not less than three years' - Whether said period may be truncated and computed segmentally such that non-use of registered mark is proved by showing non-use for only a part of the duration of the three years up to one month before filing of rectification action

The appellant is a company incorporated in the Philippines and is the registered owner of the trade mark 'Oishi' in class 29, class 30 and class 43 on the Register of Trade Marks. The respondent is a public company incorporated in Thailand and is in the business of manufacturing and producing non-alcoholic beverage, aerated water, fruit juices, ready to drink green tea and carbonated drinks under its trade mark 'OISHI'. On 24 October 2011, the respondent had applied to the Registrar of Trade Marks for the registration of its trade mark 'OISHI' in class 32 but was rejected because the appellant's trade mark had already been registered in the Register of Trade Marks. The Registrar's refusal to the application was premised on the ground that the respondent's trade mark was similar to the a

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