The trademark law in India provides for an opportunity to the applicant of a trademark to correct the filed application to the extent it involves minor changes only and does not substantially affect the identity of the trademark or extent the goods or services covered by the application. In case the amendment is such which materially alters the filed mark application does not meet above criteria the applicant must move a fresh application.
The correction or amendment as allowed under Section 22 can be made at any time after an application is filed and before the registration of the mark. If the amendments are made after advertising the mark, then it shall lead to re-advertisement which will eventually delay the registration of the trademark. The treatment of the common amendments by the registrar is as under:
1. Amendment/Correction in the name or address of the applicant
The registrar normally accepts clerical mistakes and allows amendments in the trademark application. However, it does not allow to replace the name of applicant with some other person. In other words, correction of name of applicant is allowed whereas with respect to address both correction as well as amendment is allowed.
2. Amendment of trademark
Where a mark is to be amended without the necessity of a fresh application, the applicant is generally required to file fresh representations of the mark as amended for substitutions in his application. In exceptional cases where the mark is in the colors and the applicant is unable to furnish or would be put to undue expense in supplying representations of the proposed amended mark in the original colours, the applicant is allowed by the registrar to affect the amendments of the mark in most convenient way without altering the identity in the mark.
3. Amendment of user date
An application for registration of trade mark should state the date or period from which the mark applied for registration has been continuously used in respect of the stated specification of goods. Cases do arise from time to time before the registrar for correcting the mistake in user statement. In all such cases the onus is on the applicant to satisfy the registrar by evidence to make such changes. The correct date of user becomes significant as it affects the rights of parties by reason of priority in adoption of the mark. The practice of the registry is to allow such amendments wherever found justified by way of evidence.
4. Amendment involving change of class
The class number in the trademark application is relevant for the fact that it helps in interpretation of the scope of the application, the classification is primarily a matter of administrative convenience, which is also referred as Pigeon holes into which an application can be put. Based on the facts and circumstances of each case the registrar normally allows this kind of amendment.
5. Stage at which amendment is applied and its treatment
The amendment in trademark application can be filed before its registration or rejection. Any amendment filed before examination report is issued is considered to be better one. However, if the amendment application is filed after examination report has been issued then the application needs a fresh examination by the examiner. Similarly, if the amendment application is filed after the trademark has been advertised then a re-advertisement is required. In case, amendment is moved after a third party opposed the registration then that third party needs to be notified about the amendment.
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