Section 87 in The Trade And Merchandise Marks Act, 1958
87. Procedure where invalidity of registration is pleaded by the accused.
(1)Where the offence charged under section 78 or section 79 is in relation to a registered trade mark and the accused pleads that the registration of the trade mark is invalid, the following procedure shall be followed:-(a)If the magistrate is satisfied that such defence is prima facie tenable, he shall not proceed with the charge but shall adjourn the proceeding for three months from the date on which the plea of the accused is recorded to enable the accused to file an application before the High Court under this Act, for the rectification of the register on the ground that the registration is invalid.(b)If the accused proves to the magistrate that he has made such application within the time so limited or within such further time as the magistrate may for sufficient cause allow, the further proceedings in the prosecution shall stand stayed till the disposal of such application for rectification and of the appeal, if any, therefrom.(c)If within a period of three months or within such extended time as may be allowed by the magistrate the accused fail to apply to the High Court for rectification of the register, the magistrate shall proceed with the case s if the registration were valid.(2)Where before the institutions of a complaint of an offence referred to in sub-section (1), any application for the rectification of the register concerning the trade mark in question on the ground of invalidity of the registration thereof has already been properly of invalidity of the registration thereof has already been properly made to and is pending before the tribunal, the magistrate shall stay the further proceedings in the prosecution pending the disposal of the application aforesaid and shall determine the charge against the accused in conformity with the result of the application for rectification in so far as the complaint relies upon the registration of his mark.
