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Removal from register of word trade marks used as name of articles.
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109.—(1) Where in the case of an article or substance manufactured under any patent in force at or granted after the commencement of this Part of this Act, a word trade mark registered under this Act is the name or only practicable name of the article or substance so manufactured, all rights to the exclusive use of such trade mark, whether under the common law or by registration, shall cease upon the expiration or determination of the patent, and thereafter such word shall not be deemed a distinctive mark, and may be removed by the court from the register on the application of any person aggrieved.
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(2) No word which is the only practicable name or description of any single chemical element or single chemical compound, as distinguished from a mixture, shall be registered as a trade mark, and any such word may be removed by the court from the register on the application of any person aggrieved:
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Provided that the provisions of this sub-section shall not apply where the mark is used to denote only the proprietor's brand or make of such substance, as distinguished from the substance as made by others, and in association with a suitable and practicable name open to the public use.
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(3) The power to remove a trade mark from the register conferred by this section shall be in addition to and not in derogation of any other powers of the court in respect of the removal of trade marks from the register.
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(4) An application under this section may, at the option of the applicant, be made in the first instance to the controller, and in such case the controller shall have all the powers of the court under this section, but his decision shall be subject to appeal to the court.
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