Rectification of Trademark in India
Rectification of trademark means making alterations or changes in the registered trademark. The Rectifications may be made in order to correct or rectify an error or an omission that has been made in the details of a trademark as recorded in the trademark register, after the trademark registration. Rectification may be made in any mark if it has been wrongly registered or may have remained on the register even after its expiry.
Any person who is aggrieved by the registration of the trademark is empowered to make an application for the rectification of trademark. Further, an applicant himself can also make an application for the rectification of trademark. An application for trademark rectification shall be filed before the trademark registry where the trademark registration application was filed.
Grounds for trademark rectification
- It is deemed that the registration was obtained with the misrepresentations of the facts and is similar to an earlier mark registered.
- The rectification or modification is required due to some recent developments or advancements.
- The mark was wrongly remaining on the register in case it is against to some legal provisions of the Act or likely to cause confusion.
- The mark is not being used for more than five years by the registered proprietor.
- Previously registered trademark or original trademark is not renewed.
- Inclusion or addition of certain more class or goods or services, in case it is against to the business extent of the registered trademark.
- The registered trademark is not in line with the with one or more grounds stipulated in Section 9 and Section 11 of the Indian Trade Marks Act of 1999.
Procedure for rectification of trademark
The application rectification or cancellation shall be filed in triplicate, is the Form TM-26, or the Form TM-43 (for the collective or certification marks).
The application for rectification of trademark along with the statement of fact and prescribed fees shall be submitted to the registrar. After receiving the application the registrar shall send the copy of the application along with the statement of facts to the registered proprietor of the mark asking him to file his counter-statement in support of his statement.
After submission of the counter statement by the registered proprietor, the Registrar, ask both the parties to submit evidence supporting the claims made by them. On submission of evidence, the matter is set for final hearing by giving both the parties equal opportunity to make an oral submission if required on merits and the Registrar passes the final order.
Result of Trademark Rectification
There are chances that through rectification a trademark may be removed from the trademark register and owner will lose his exclusive rights over it. Thus merely obtaining the trademark registration is not sufficient. The basic purpose of the trademark law is to protect the distinctive mark, label, logo designed and established by the owner.
It is recommended that in order to prevent the rectification or cancellation or removal of a registered trademark from the register, proper precautions must be taken i.e. the trademark renewal from time to time, not doing anything which will destroy the distinctive character of the mark or not allow the mark to remain unused for a period exceeding five years.
In this manner the rectification can be filed for the registered trademark also.