42.
| (1) Subject to the provisions of subsections (2) to (4) of this section, and to the provisions of sections 8 and 9, the registration of a person as proprietor of a certification trade mark in respect of any goods shall, if valid, give to that person the exclusive right to the use of the trade mark in relation to those goods, and without prejudice to the generality of the preceding provisions that right shall be deemed to be infringed by any person who, not being the proprietor of the trade mark or a person authorized by him under the regulations framed in that behalf and using it in accordance therewith, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken either-
| | (a) as being use as a trade mark; or | | |
| | (b) in a case in which the use is use upon the goods or in physical relation thereto or in an advertising circular or other advertisement issued to the public, as importing a reference to some person having the right either as proprietor or by his authorization under the relevant regulations to use the trade mark or to goods certified by the proprietor. | | |
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| (2) The right to the use of a certification trade mark given by registration under section 38 shall be subject to any conditions or limitations entered on the register, and shall not be deemed to be infringed by the use of any such mark as aforesaid in any mode, in relation to goods to be sold or otherwise traded in at any place, in relation to goods to be exported to any market, or in any other circumstances, to which, having regard to any such limitations, the registration does not extend. |
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| (3) The right to the use of a certification trade mark given by registration under section 33 shall not be deemed to be infringed by the use of any such mark as aforesaid by any person-
| | (a) in relation to goods certified by the proprietor of the trade mark, if as to those goods or a bulk of which they form part, the proprietor or another in accordance with his authorization under the relevant regulations has applied the trade mark and has not subsequently removed or obliterated it, or the proprietor has at any time expressly or impliedly consented to the use of the trade mark; or | | |
| | (b) in relation to goods adapted to form part of, or to be accessory to, other goods in relation to which the trade mark has been used without infringement of the right given as aforesaid or might for the time being be so used, if the use of the mark is reasonably necessary in order to indicate that the goods are so adapted and neither the purpose nor the effect of the use of the mark is to indicate otherwise than in accordance with the fact that the goods are certified by the proprietor: | | |
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| (4) Where a certification trade mark is one of two or more registered trade marks that are identical or nearly resemble each other, the use of any of those trade marks in the exercise of the right to the use of that trade mark given by registration shall not be deemed to be an infringement of the right so given to the use of any other of those trade marks. |
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| (5) A certification trade mark shall not be assignable or transmissible otherwise than with the consent of the Registrar. |
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Sri Lanka Consolidated Acts