Overview: The blog provides an in-depth understanding of the process of filing for the rectification or removal of a registered trademark with the Registrar of Trademarks in India. It discusses the grounds for removal and the rectification of registered trademarks. The blog aims to educate readers on effectively protecting their brand and rights under the Trademark Act of 1999.
Suppose you are aggrieved by the registration of someone else’s trademark. In that case, you have an alternative remedy to apply to the Registrar of Trademarks to remove or rectify the trademark. The Registrar of the trademark is endowed with powers to maintain the integrity of the trademark register and protect the rights of trademark owners. These include
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1. Examination of trademark application:
2. Deciding an opposition filed to an accepted mark
3. Removal of the registered trademark:
- Non Uses for a continuous period of five years: If the trademark is registered and not used for a continuous period of 5 years starting from the date of grant of registration. The assessment of this continuous non-use is made up to three months from the date of application for removal of such trademark
- Legal Restriction: Non-use due to legal restrictions or special trade circumstances may protect the trademark from removal.
- Good Faith: If the registered trademark has been used in good faith for similar or associated goods or services but not for specific goods or services for which it was registered.
- Regional Use: If the non-use of the registered mark relates to a specific region or market, there is a provision to limit the original trademark’s registration, excluding those regions or markets instead of removing it.
- No bonafide intention to use and no actual use: If a trademark was registered without a bonafide intention to use and there is no actual use up to three months before the date of applying for removal of the mark.
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4. Rectification of registered trademark:
- Alteration of the mark: The trademark owner may apply for the alteration of the mark, provided that the change does not substantially affect the mark’s identity. It is explained through an example as under:
Example: If a registered proprietor wants to slightly modify the font style or change the shade of colour in its registered logo, it can apply for an alteration under Section 57. As long as the changes do not substantially affect the trademark’s identity, the alteration may be allowed without requiring a new trademark application. - Correction of errors: Section 57 also allows for corrections of clerical errors or other mistakes in the register. If an error or omission has occurred in the trademark registration details, such as a clerical mistake in the proprietor’s name, an incorrect address, or a typographical error in the description of the goods or services, these can be corrected by filing an application under section 57 of the Trademark Act.
- Cancellation or variation in the registered trademark: Section 57 of the Trade Marks Act, 1999, allows for the cancellation of a trademark registration if it was obtained through misrepresentation, fraud, or without sufficient cause. An example of this could be the cases where :
- An applicant deliberately submits forged documents or falsified information about the usage of the trademark and obtains the registration or
- A company providing accounting services applies for chemical products with no legitimate interest or intention to use the trademark for said chemical goods in commerce.
It is possible that both Sections 47 and 57 could be invoked in the same or related proceedings, mainly where there are claims both of non-use and irregularities in the registration process.
The above provision of refusal, removal, and rectification ensures that only marks that are compliant with the Act, procured without fraud, misrepresentation, or any other irregularity, and are in active use should remain in the Register of Trademarks, thereby maintaining the purity of the register. We at setindiabiz will help you understand your trademark claim, enabling you to make a better decision about enforcing your proprietary rights in your trademark.
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