U. C. BANERJEE, J. ( 1 ) BOTH the English Act of 1938 (Trademarks Act, 1938) and the Indian Act of 1958 (The Trade and Merchandise Marks Act, 1958) are in pari materia with each other in regard to the availability of a defence of special circumstances in the matter of an application for removal of a registered mark from the register of marks. For convenience's sake sections 26 (1) and 26 (3) of the English Act and sections 46 (1) (b) and 46 (3) of the Indian Act are set out hereunder. "26. For convenience's sake sections 26 (1) and 26 (3) of the English Act and sections 46 (1) (b) and 46 (3) of the Indian Act are set out hereunder. "26. (1) Subject to the provisions of the next succeeding section, a registered trademark may be taken off the register in respect of any of the goods in respect of which it is registered on application by any person aggrieved to the Court or, at the option of the applicant and subject to the provisions of section fifty-four of this Act, to the Registrar, on the ground either- (a)that the trademark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to Those goods by him, and that there bas in fact been no bona fide use of the trademark in relation to those goods by any proprietor thereof for the time being up to the date one month before the date of the application ; or (b)that up to the date one month before the date of the application a continuous period of five years or longer elapsed during which the trademark was a registered trademark and during which there was not bona fide use thereof in relation to those goods by any proprietor thereof for the time being : provided that (except where the applicant has been permitted under sub-section (2) of section twelve of this Act to register an identical or nearly resembling trademark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to register such a trademark) the tribunal may refuse an application made under paragraph (a) or (b) of this sub-section in relation to any goods, if it is shown that there has been, before the relevant date or during the relevant period, as the case may be, bona fide use of the trademark by any proprietor thereof for the time being in relation to goods of the same description, being goods in respect of which the trademark is registered. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) An applicant shall not be entitled to rely for the purposes of paragraph (b) of sub-section (1) or for the purposes of sub-section (2), of this section on any non-use of a trademark that is shown to have been due to special circumstances in the trade and not to any intention not to use or to abandon the trademark in relation to the goods to which the application relates. "46. "46. Removal from register and imposition of Limitations on ground of non-use (1) Subject to the provisions of Section 47, a registered trademark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved on the ground either- (a)that the trademark was registered without any bona fide intention on the part of the applicant for registration that it should he used in relation to those goods by him or, in a case to which the provisions of section 45 apply, by the company concerned, and that there has, in fact, been no bow fide use of the trademark in relation to those goods by any proprietor thereof for the time being up to a date one month before the date of the application ; or (b)that up to a date one month before the date of the application, a continuous period of five years or longer has elapsed during which the trademark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being : provided that, except where the applicant has been permitted under sub-section (3) of section 12 to register an identical or nearly resembling trademark in respect of the goods in question or where the Tribunal is of opinion that he might properly be permitted so to register such a trademark, the Tribunal may refuse an application under Clause (a) or (b) in relation to any goods, if it is shown that there has been, before the relevant date or during the relevant period, as the case may be, bow fide use of the trademark by any proprietor thereof for the time being in relation to goods of the same description, being goods in respect of which the trademark is registered. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) An applicant shall not be entitled to rely for the purpose of Clause (b) of sub-section (1) or for the purpose of sub-section (2) on any non-use of a trademark which is shown to have been due to special circumstances in trade and not to any intention to abandon or not to use the trademark in relation to the goods to which the application relates. " ( 2 ) ON perusal of the above-noted two statutory provisions therefore, it appears that the legislative intent in both the statutes are identical and to the effect that in the event of there being a non-user of a registered trademark or in the event there is no bona fide user thereof by the proprietor for a period of 61 months, the proprietor cannot keep a mark duly registered in the register of marks excepting however, that in the event of there being any special circumstances existing, the proprietor of the marks will have a good defence in regard thereto. ( 3 ) THE phrase "special circumstances in the trade" was considered in Manus v. Fullwood and Bland Ltd. (1949) 66 RPC 71 when Evershed L. J. delivered a 'judgment in which Lord Greens and Somervell L. J. concurred. At page 79, Evershed L. J. stated :"it is not in my view necessary that the special circumstances should be such as to afflict all traders equally or indeed to afflict all of them at all. It is important to my mind to note that the relevant phrase is used in contrast to that which immediately follows-"and not to any intention not to use or to abandon the trademark. ' In that context it seems to me (without attempting any precise definition) that the words must be taken to refer to circumstances which are 'special' in the sense of being peculiar or abnormal and which are experienced by persons engaged in a particular trade as the result of the working of some external forces as distinct from the voluntary acts of any individual trader. According to such a test no less than (in my view) the ordinary and common sense meaning of the words, the impact of war conditions making impracticable the ordinary usages of international trade would amount to special circumstances in the trade ; and if the non-user of his mark by a particular trader was in fact due to the effect upon his business of those conditions, then he would in my view be within the protection of sub-section (3 ). ""the relevant facts here are as follows : From 1935 until the outbreak of war, the Bali Company imported brassieres into the United Kingdom under its trademark BALI. But then, as the result of the war of Government Orders, it stopped importing any of these goods. On 9th November 1959 those orders were withdrawn and the goods were put on open general license, as the result of which they could from that date be imported without restriction. The Bali Company did not start importing those goods again until well after April, 1960. Thus for five years and one months before the date of this application for rectification on the 13th May, 1960, no use was made of the registered trademark BALI, and the case therefore falls under section 26 (1), as the result of which the trademark may be taken off the register, unless there are "special circumstances" within section 26 (3 ). It is not disputed that the war and, apart from a token import scheme, the Government Orders which I have mentioned constituted "special circumstances. " ( 4 ) IN this context, the observations of Ungood Thomas J, in the oft-cited Bali Case (1966 RPC 387) seems also to be very apposite. The learned Judge observed :"the Assistant Comptroller rightly concludes in his decision that it is "clear that the registered proprietors did not intend to abandon their trademark in relation to the goods to which their application relates. " Then, however, the Assistant Comptroller adds : "the fact that they were unable to obtain the necessary licenses when Mr. Stein" who is the president of Bali Company-"visited the United Kingdom is 1959 is due, in my opinion, to the ordinary give and take considerations of the trade and not due to special circumstances within the meaning of section 26 (3 ). Stein" who is the president of Bali Company-"visited the United Kingdom is 1959 is due, in my opinion, to the ordinary give and take considerations of the trade and not due to special circumstances within the meaning of section 26 (3 ). " It is quite clear, however, that the proprietor, the Bali company, could not have used the token import scheme, unless an interested firm in this country made the appropriate application, and no such application was made. It was thus not possible for the company to import under the token scheme and that was not their fault. Further, what has to be considered is not merely the existence of an absolute prohibition to import as might be thought from one passage in the Assistant Comptroller's decision, or a complete impossibility of importing, but, in the words of Evershed, L. J. (supra) the existence of conditions "making impracticable the ordinary usages of international trade. " A trademark is a commercial asset intended to be used commercially by businessmen, and it seems to me that "special circumstances" have to be understood and applied in a business sense. In my view, this token import scheme modification to the earlier general prohibition did not convert what was before impossible into what was, in a business sense, practicable, even if a firm in this country had made the necessary application under that scheme. The non-use of the trademark by the Bali Company, even during the token import scheme period, is thus, in my view, shown to have been due to special circumstances in the trade. Similarly, I conclude on the fast issue under section 11 that the Bali Company has not since the registration of its trademark become disentitled to protection by reason of circumstances over which it has bad control. The result is that the Berlie Company succeeds in the first issue namely, the issue involving section 11 on the point that the BALI trademark should not have been registered in 1938 and the Bali Company succeeds on the second issue involving section 26. It follows that the Bali Company appeal fails unless the court has a discretion under section 32 which it considers should be exercised in favour of the Bali Company. It was submitted for the Bali Company that the court should exercise its discretion under section 32 in its favour. It follows that the Bali Company appeal fails unless the court has a discretion under section 32 which it considers should be exercised in favour of the Bali Company. It was submitted for the Bali Company that the court should exercise its discretion under section 32 in its favour. This submission was made on the ground that the Bali trademark had been registered for over 25 years ; that the Bali Company is not to be blamed for import restrictions which prevented in using the trademark here for a period, and that it has not been suggested that the Berlie Company's trade has suffered because of the registration of the trademark BALI. But, though registered for over 25 years and though the Bali Company is not to be blamed for import licensing, the trademark BALI has never been in any substantial use here before the application for rectification, and from 1939 until this application it has not been in any use here at all ; so that it is not surprising that it is not established first the Berlie Company has suffered damage. That, unlike the other requirements, does not have to be established under the Act, and, in my view, it should not be introduced as a requirement under cover of exercise of the court's discretion. In my view, these grounds are not sufficient to justify any such exercise of discretion in favour of the Bali Company as is suggested. The appeal therefore fails. " ( 5 ) ONE other decision of the English Court ought also to be noted. In Bulova Trademark Case (1967 RPC 229) Ungoed Thomas J after noting the Evershed L. J. 's Judgment (supra) and some other decisions of the English Court observed"these passages indicate that, if independently of the special circumstances there would be non-use, then non-use would not be due to the special circumstances ; and this seems to imply as a corollary that, if there would be use in the absence of special circumstances, then nonuse would be "due to" the special circumstances within the meaning of section 26 (3 ). In this case it is clear from the last passage which I have quoted from the Assistant Comptroller's decision (and is indeed common ground) that, if there had been no Import Order, there would have been use of the trademark during the relevant period. In this case it is clear from the last passage which I have quoted from the Assistant Comptroller's decision (and is indeed common ground) that, if there had been no Import Order, there would have been use of the trademark during the relevant period. This contrasts on the finding of fact with such a case as Columbia Gramophone, where it was held on the facts that the Special circumstance was not "the reason why they did not make use of the marks. "my conclusion, therefore, is that the appeal, succeeds. But I will refer briefly to the appellants' submission that, even if, contrary to my view, it has to be established that there was no practical alternative international usage under which the trademark could be used, yet there was no such practicable alternative in this case. The only two practical alternatives suggested were (1) manufacture in this country and (2) the acquisition of a quota. " ( 6 ) HAVING discussed the law on the subject as above and turning attention now however, on to the factual context pertaining to this appeal it is to be noted that the learned trial Judge has allowed the application of the respondent herein in regard to removal of the trademark "vimto" formerly recorded in the name of J. N. Nichols and Company Limited and now under the name of J. N. Nichols (Vimto) Limited being the successor-in-interest of the erstwhile J. N. Nichols and Company Limited. ( 7 ) ON the factual score it appears that M/s. J. N. Nichols and Company Limited being the predecessor-in-interest of the appellant was the registered proprietor of the Trademarks Nos. 7060, 170440 and 170441 registered in India in Class 32 in respect of non-alcholic drinks and preparation making such drinks and non-alcholic fruit flavoured cordials under the provisions of the Trade and Merchandise Act, 1958. In January, 1978 the respondent herein made an application in this Court under section 46 of the Act of 1958 being Matter No. 156 of 1978 for an order that the trademark "vimto, (word or device) registered in the name of J. N. Nichols i4 Company Limited under No. 7060, 170440 and 170441 be removed and taken off and or cancelled from the Register of Trademarks and this Court by an order dated 30th November, 1978 directed the removal of the said mark "vimto" be taken off the register of trademark. Incidentally, it is to be noted that the respondent applied for registration of its trademark "vimto" with the appropriate authority by reason of the said mark being extensively used in and around the city of Calcutta. The appellant however, opposed the said application for registration on the ground that "vimto" would otherwise be deceptively similar to the existing registered trademark of the appellant "vinto". The opposition of the appellant has been registered bearing No. CAL-1727 and the proceeding is now pending before the learned Authority. ( 8 ) ON the further factual score it appears that during the pendency of the proceeding in regard to the opposition of the appellant being case No. CAL 1727, the respondent herein applied before this Court for removal of the mark "vinto" (word or device) registered in Class 32 under No. 7061 from the register of trademarks. It is on this application than the learned trial Judge has passed an order of removal of the appellant's mark "vinto" from the register of trademarks maintained by the Registrar of Trademarks, Calcutta and hence the appeal against the order of the leaned trial Judge. ( 9 ) THE appeal raises a short but an interesting question in regard to the availability of a special defence under section 46 (3) of the Trade and Merchandise Act, 1958 viz. , existence of special circumstances. It is pertinent to note that the principal ground as made out by the respondent in its petition before this Court for removal of the mark "vinto'' from the register of marks maintained at Calcutta in the office of the Registrar of Trademarks is non-user of the mark by the registered proprietor thereof for a period of 5 years and preceding one month from the date of presentation of this petition for such removal. ( 10 ) ADMITTEDLY, there has not been any use of the mark Vimto after its registration It is to be noted here that the appellant is the registered proprietor of both the products viz. , 'vimto' as well 'vinto' in Class 32 having separate registration number. The product vimto as stated earlier is admittedly, no longer in use by reason of an order passed by this Court in the year 1978 directing removal of entry from the register maintained at Calcutta under the Trade and Merchandise Act, 1958. Now this application pertains to removal of the other mark viz. The product vimto as stated earlier is admittedly, no longer in use by reason of an order passed by this Court in the year 1978 directing removal of entry from the register maintained at Calcutta under the Trade and Merchandise Act, 1958. Now this application pertains to removal of the other mark viz. , "vinto'' owned by the appellant. The defence raised is existance of special circumstances by way of import restriction. Mr. Chakraborty, appearing for the appellant strenuously contended that there is no manner of doubt as regards the introduction of an import restriction in the year 1977. So far as the consumer goods including the importation of compound concentrate are concerned and as such section 46 (3) has its full play in the matter in issue and the order passed by the learned trial Judge cannot thus sustained. Serious criticisms have also been levelled by the Counsel for the appellant in regard to the observation of the learned trial Judge pertaining to the import restrictions concerning compound of Vinto since according to Mr. Chakravarty question of there being any import ban for specific items viz. , concentrate compound of Vinto does not and cannot arise since all consumer products have been banned. ( 11 ) AT this juncture however, true purport of section 46 (1) (b) and section 46 (3) ought to be considered. The language used in section 46 (l) (b) does not pose any difficulty in the matter of ascertainment of the legislative intent to the effect that in the event of the mark being not in use for a continuous period of five years up to a date one month before the date of the application, an application for removal of the mark from the register is maintainable. Section 46 (3) however, is an exception to section 46 (1) (b)-The statute recognises an exception in the event of there being existence of special circumstances for nonuser of the mark by the proprietor for the requisite period of time as noted above. ( 12 ) COMING back however, on to the special circumstances it is well settled that the circumstances ought to be shown o be peculiar, abnormal and contrary to normal prevailing situation. ( 12 ) COMING back however, on to the special circumstances it is well settled that the circumstances ought to be shown o be peculiar, abnormal and contrary to normal prevailing situation. It is in the nature of an exceptional situation that the legislature intended to provide-Be it noted here, that apart from these peculiar, abnormal and exceptional situation prevailing there has to be a situation which is applicable to all and sundry in the trade and not peculiar however, to the trader alone. To my mind and without attempting to define the same special circumstances should mean and imply an embargo in the normal functioning of the trade by reason of an involuntary act as opposed to a voluntary act. ( 13 ) LET us therefore now concentrate as to whether in fact, there was any special circumstances existing so as to avoid the charge of non-user for a period of 61 (sixty-one) months. ( 14 ) BEFORE examining this part of the submission of the appellant, it is to be noted however that Mr. P. K. Das, appearing for the respondent strongly contended that question of applicability of section 46 (3) does not and cannot arise in the facts of the matter under consideration and as such, assuming there being any special circumstances the same would not be of any use to the appellant. ( 15 ) VARIOUS decisions have been cited in regard to the existence of special circumstances but before any consideration can be had on to the special circumstances let us now turn our attention on the factual score and examine the contention of the respondent's counsel as to whether in fact, the factual score warrants invocation of the concept of special circumstances in the facts of the matter under consideration more so by reason of the fact that the special circumstances cannot be taken note of as a defence if the non-user is by reason of a voluntary act. ( 16 ) INCIDENTALLY it is to be noted that trade restrictions cannot but be termed to be special circumstances which would be a complete answer to the application for removal of the mark by reason of non-user thereof. ( 16 ) INCIDENTALLY it is to be noted that trade restrictions cannot but be termed to be special circumstances which would be a complete answer to the application for removal of the mark by reason of non-user thereof. Admittedly, this application for removal of the mark has been made by the respondent before the learned trial Judge on 19th November, 1987 the period under consideration therefore, would be 61 months prior to the date of the application viz. , October 10, 1982 as per requirement section 46 (1) (b) and the special defence in terns of section 46 (3) must therefore, pertain to this period between October 10, 1982 to November 11, 1987. The appellant's contention is that by reason of the total ban imposed under the import policy of 1981-1982 in particular Item 77 under Appendix 4, question of importation of any compound or concentrate does not and cannot arise. It is on this score that certain factual details ought to be had. Up to 1984 there was in fact, a registered user agreement for both 'vimto' and 'vinto. ' In 1956 the erstwhile J. N. Nichols and Company Limited entered into an agreement for the product 'vimto' only and in 1963 however, the agreement covers both the products viz. , 'vimto' and 'vinto' which continued up to the year 1984. Therefore, apparently in the event of there being any use of the mark 'vinto' up to the year 1984, question of removal of the mark would not arise since otherwise it would be within the period of 61 months as noted above. ( 17 ) FROM the affidavit filed in support of the appellant's contention before the learned trial Judge it appears that the appellant was in fact, supplying its concentrate for Vimto compound from Manchester, England to Rogers, Bombay until September, 1977 and the supplies of Vimto compound had to be discontinued by the appellant due to restrictions on import imposed by the Government of India and such restriction is still in force and has not been withdrawn. The supplementary affidavit filed by one J. P. Dubash, being a director of Rogers and Company Private Limited however sound a different and records that as a registered user and thereafter as a licensee, Rogers has used the trademark Vimto openly, extensively and continuously and the annual average sales of Vimto products for three years viz. The supplementary affidavit filed by one J. P. Dubash, being a director of Rogers and Company Private Limited however sound a different and records that as a registered user and thereafter as a licensee, Rogers has used the trademark Vimto openly, extensively and continuously and the annual average sales of Vimto products for three years viz. , 1985; 1986 and 1987 was varying between Rs. 35,000 to Rs. 40,000/- and such products were supplied to various consumers in Bombay as per the challans annexed to the said affidavit. The purport of the statement of the deponent in the said affidavit is clear enough to indicate that the product Vimto continued to be sold in Bombay up to the year 1987. ( 18 ) ON this factual backdrop the question therefore, arises as to whether that the import ban was a deterrant factor in the matter of user of the mark 'vinto' or not. ( 19 ) INCIDENTALLY, it is to be noted that use of the mark does not postulate actual sale of the goods bearing such a mark. 'use' to my mind can be in any form or way and does not necessarily mean and imply actual physical sale and it is now well settled that even mere advertisement without having even the existence of the goods can be said to be an use of the mark and I need not dilate on this score. In Halsbury's Laws of England (4th Edition; Paragraph 111) it has been stated "whether there has been bona fide use sufficient to prevent a trademark from being taken off the register depends first on whether there has been use and secondly whether that use was a bona fide". The paragraph goes on to record that the motive necessary to constitute bona fide use is not easy to define and it is settled that bona Cute is not used in contra-distinction to mala fide-What is required is that the use must be genuine, as judged by commercial standards, and if the primary purpose is not to trade under the mark but merely to validate the registration, the use is not bona fide. ( 20 ) COMING back to the special circumstances once again within the meaning of section 46 (3) it is to be noted that the existence of special circumstances must not be of the trader only but it must exist for the entire trade. to be precise, the special circumstances must affect the trade as a whole and the onus of establishing that the case comes within the ambit of section 46 (3) lies on the registered proprietor of the trademark. It must be shown that the non-user was due to special circumstances of the trade only and not by reason of some other cause which would have otherwise be operative even in the absence of the special circumstances. If the non-user was, in fact, by reason of some other factors apart from the special circumstances, question of there being a defence under section 46 (3) being made available to the proprietor of the mark does not and cannot arise. A specific case shall have to be made and proved with necessary documentary evidence that the nonuser was the direct effect of the existence of the special circumstances. The decision in the matter of a Trademark No. 99555 of James Crean's and Son Ltd. (38 RPC 155) lend support to the observations as above. It is true that by reason of an import restriction importation of consumer goods have been banned but does that by itself allow the appellant to take shelter in terms of section 46 (3) of the Act of 1958-It appears that the product vimto was in sale up to 1987 then what was the reason for not being able to manufacture and sell the other product viz. , Vinto-Apparently, there is no explanation whatsoever. Needless to record here that there was only one registered user's agreement dated 13th August, 1963 which covers both Vimto and Vinto and if Vimto could he sold there was no reason why Vinto could not be sold under the agreement of 1963. Another redeeming feature ought also to be noted on which strenuous submissions have been made by both the parties. The first agreement 1956 entered into by and between J. N. Nichols and Company Limited described in the agreement as the manufacturer and the agreement contained a specific clause to the following effect viz. Another redeeming feature ought also to be noted on which strenuous submissions have been made by both the parties. The first agreement 1956 entered into by and between J. N. Nichols and Company Limited described in the agreement as the manufacturer and the agreement contained a specific clause to the following effect viz. : "the manufacturer will sell and deliver to the bottler such quantities of the compound as may be ordered from time to time by the bottler at such prices as shall be fixed from time to time by the manufacturer". ( 21 ) THE second agreement of 1963 is conspicuously silent in regard to the availability of the compound and Clause 3 thereof reads as follows "3. The user will at all material times observe the standards, specifications, formula, and instructions laid down by the proprietor from time to time concerning the methods of manufacture, quality, preparation, bottling, labelling and marketing of the goods for sale, bearing the trademarks, and will only use in the manufacture and bottling of the goods such ingredients and compounds as specified by the proprietors". ( 22 ) IT is noted that J. N. Nichols has been described as the 'manufacturer' and Rogers and Company has been described as the 'user' in the 2nd Agreement, the Respondent herein was a party to the 1st Agreement and described as "bottler". But the mention of the availability of the compound in the fast agreement is significantly silent in the next agreement. The appellant however, contended that the last but one line of Clause 3 of the agreement categorically records the availability of ingredients and compounds. I am however, unable to accept such an interpretation by reason of the user of the language in the clause itself. 'as specified by the proprietor' in the last line of Clause 3 of the second agreement makes the position abundantly clear that it is not making the compound available but compound as specified by the proprietor. In the normal course of events parties to the agreement intending to express a particular set of facts would use the self-same expression. The language of the first agreement is clear and categorical in regard to the availability of the compound whereas in the second agreement the same is only as "specified" by the manufacturer. In the normal course of events parties to the agreement intending to express a particular set of facts would use the self-same expression. The language of the first agreement is clear and categorical in regard to the availability of the compound whereas in the second agreement the same is only as "specified" by the manufacturer. ( 23 ) BE that as it may, the fact remains the product Vimto was sold up to year 1987 whereas the product Vinto did not see the fight of the day ever. The import restriction therefore, in the facts of the matter under consideration did not prevent Rogers and Company being the registered user from manufacturing and selling Vimto up to the year 1987 and for the same reason the manufacturer or its registered user could have used the product 'vinto' and import restriction cannot be termed to be a special circumstances within the meaning of section 46 (3) of Act of 1958. If Vimto could be sold in spite of import restriction there is no earthly reason whatsoever as to why Vinto could not be sold in spire of such an import restriction. ( 24 ) MR. Chakraborty next contended that on the basis of the available documentary evidence in any event there is no manner of doubt that the product Vinto, in fact, was used within the specified period and relied upon a bill of lading and the manufacturer's invoice but in my view, that by itself will not be sufficient to bring home the contention of user of the mark within the period prescribed. There must be some cogent evidence available on records that the goods have arrived into this country and certain other steps to steps to come within the ambit of expression 'user'. ( 25 ) IN the premises I have come to the conclusion that on the basis of documentary evidence as is available in the facts of the matter under consideration the appellant has not discharged the onus that lies upon them of excusing themselves from the non-user during the period of five years and one month immediately preceding the application. The appellants have also not been able to bring home the contention that there was in fact, special circumstances attached to the trade during the period in question more so by reason of free sale of product 'vimto' up to the year 1987. The appellants have also not been able to bring home the contention that there was in fact, special circumstances attached to the trade during the period in question more so by reason of free sale of product 'vimto' up to the year 1987. In that view of the matter, the appeal fails and is dismissed. ( 26 ) NO order as to costs. Kalyanmoy Ganguli, J.-I agree. Appeal dismissed. .