Permitted Use and the Registered User

In one line

A registered user is a licensee whose licence is on the register, and section 48 makes his use the proprietor's use.

In the wording a student can write in an exam: section 48(1) provides that, subject to section 49, a person other than the registered proprietor may be registered as a registered user of a trade mark in respect of any or all of the goods or services for which the mark is registered; and section 48(2) provides that permitted use shall be deemed to be used by the proprietor, and shall be deemed not to be used by a person other than the proprietor, for the purposes of section 47 or for any other purpose for which such use is material under this Act or any other law.

Section 48(1): who may be a registered user, and for what

"A person other than the registered proprietor." So the proprietor cannot be his own registered user, and the entry is necessarily of somebody else.

"In respect of any or all of the goods or services in respect of which the trade mark is registered." The registration as registered user may be partial. A proprietor registered for tea and coffee may register a user for coffee only.

"Subject to the provisions of section 49." The entry is made only on the joint application and the material section 49 requires, which chapter 920 works.

Section 48(2): the two deemings

Deeming one: permitted use IS the proprietor's use.

Where that matters.

• Section 47, the non use ground, which the sub-section names expressly.
• The proviso to section 9(1) and section 32, where distinctiveness acquired through use is proved.
• Section 34, where a prior user must show continuous use, if the use relied on was by a licensee.
• Section 18(1), because American Home Products Corporation v. Mac Laboratories Pvt. Ltd., (1986) 1 SCC 465 held that the words "proposed to be used by him" include use by a registered user, reading the statutory fiction into the application stage.
• And any other purpose for which such use is material under this Act or any other law, which is wide enough to reach a passing off claim resting on goodwill built by a licensee.

Deeming two: it is NOT the licensee's use.

Where that matters.

• The licensee builds no rights of his own. He cannot claim proprietorship by user at the end of the licence.
• He cannot rely on his own use to found a passing off claim against the proprietor.
• And Wander Ltd. v. Antox India P. Ltd., 1990 Supp SCC 727 is the case in which that argument was tried and failed.