ABSTRACT
Magika Clear Rum Ltd have a registered mark in ‘Magika Clear’, registered under the TMA 1938. Rights follow through the transitional provisions of the TMA 1994.
Under s 9 of the TMA 1994, a proprietor of a registered trade mark has exclusive rights in the trade mark. The acts constituting the infringement of Magika’s trade mark are set out in s 10. In deciding whether a s 10 infringement has taken place, the court has to decide whether the sign registered as a trademark is used in the course of trade, and then to consider whether that use falls within one of the defining sub-sections. To be infringing, it must be used in a trade mark sense. The use of the name Magi appearing on the price list will prima facie be an infringement.
