TRADE MARKS ACT
(2) Where any matter has been referred to the
Tribunal in terms of subsection (1), the Registrar
and the parties shall be entitled to be heard by the
Tribunal before any decision is made in such matter
and may appear or be represented in accordance
with section sixty-five.
70 Registration to be prima facie evidence of
validity
In all legal proceedings relating to a registered
trade mark, including applications under section
thirty-seven, the fact that a person is registered as
proprietor of the trade mark shall be prima facie
evidence of the validity of the original registration of
the trade mark and of all subsequent assignments
and transmissions thereof.
ss 64–74
by him, giving particulars of the proceedings before
him in relation to the matter in issue or of the
grounds of any decision given by him affecting it or
of the practice of the Trade Marks Office in like
cases or of such other matters relevant to the issues,
and within his knowledge as Registrar, as he thinks
fit, and the statement shall be deemed to form part of
the evidence in the proceedings.
71 Certification of validity
In any legal proceedings in which the validity of
the registration of a registered trade mark comes into
question and is decided in favour of the proprietor of
the trade mark, the High Court or Tribunal may
certify to that effect and, if it is so certified, then, in
any subsequent legal proceedings in which the
validity of the registration comes into question, the
proprietor of the trade mark, on obtaining a final
order or judgment in his favour, shall have his full
costs, charges and expenses as between legal
practitioner and client, unless in the subsequent
proceedings the High Court or Tribunal certifies that
he ought not to have them.
72 Infringement action to be heard in High
Court
(1) Any action or legal proceedings relating to the
infringement of a trade mark shall be brought in the
High Court on notice of motion.
(2) In any action or legal proceedings brought in
terms of subsection (1) the defendant may, in regard
to any registered trade mark in issue, counter-claim
for the rectification of the Register and if he does
so—
(a) he shall, within the time limit for delivery of
the counter-claim, serve the Registrar with the
same and a copy of the notice of motion, action or proceedings, and
(b) the Registrar shall be entitled to take such
part in the action as he may think fit without
delivering a defence or other pleading.
73 Trade usage, etc., to be considered
In any action or proceedings relating to a trade
mark the Tribunal or the Registrar, as the case may
be, shall admit evidence of the usages of the trade
concerned and of any relevant trade mark legitimately used by other persons.
74 Registrar’s appearance in proceedings
involving rectification
(1) In any legal proceedings in which the relief
sought includes alteration or rectification of the
Register, the Registrar—
(a) shall have the right to appear and be heard;
and
(b) shall appear if so directed by the Tribunal.
(2) Unless otherwise directed by the Tribunal, the
Registrar, in lieu of appearing and being heard, may
submit to the Tribunal a statement in writing signed
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