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Trademark Rectification
Trademark Rectification
-Trademark Rectification and its reply filing
- Work handled by professionals
- Completely online process
- Trademark Rectification or its reply filing @ just Rs 6,000/-
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What is Trademark Rectification?
Trademark rectification is the legal process to correct errors or inaccuracies in registered trademarks. This procedure ensures that trademarks accurately represent the goods or services they are intended to protect, thereby maintaining the integrity of intellectual property rights. Rectification of trademark may be necessary due to typographical errors, clerical mistakes, or ownership or business structure changes. It upholds the clarity and validity of trademarks, safeguarding against confusion or misuse in the marketplace.
An aggrieved party can file a petition for Trademark Rectification. Also, he or she can file the petition for the cancellation of the trademark Registration which happened because of some mistake or an omission. They can also file a petition for the removal of the mark which is registered. Trademark Rectification applications can be filed before the Trademark Registry which has jurisdiction. Jurisdiction plays a very important role when it comes to Trademark Registration as well as Trademark Rectification. Mostly trademark Rectification is filed in that office of the trademark where the original application has been filed for the registration.
Rectification is done after hearing both the parties properly. Without hearing the parties one cannot rectify the trademark. Once the application for rectification has been filed, the applicant who filed the application will be given an opportunity of being heard. As per the argument of both the parties expel, drop or rectification of the respective trademark will happen.
Documents for Trademark Rectification
Trademark Rectification
Power of attorney
Evidences
Process of filing trademark rectification
- Step-1: Gathering information
- Step-2: Executing POA
- Step-3: Drafting application
- Step-4: Filing the application
Who can File an Application for Trademark Rectification
Person Aggrieved
Any individual who is aggrieved by any means i.e. by way of similarity of the mark or the mark registered for malaise purpose can file for Trademark Rectification under the Trademark Act in any office whose jurisdiction it will come.
Trademark Holder
In a situation where the trademark holder finds himself the mistakes or omissions can record the same and file for rectification. It is not at all necessary that an aggrieved person can file for rectification under the trademark law.
Third person
Any third person or entity other than the trademark holder or aggrieved person can file for Trademark Rectification as of any misled occurrence with the mark or infringes the society or any part of society. It is not at all mandatory that only one who is aggrieved or who is a trademark holder can file for rectification. A third party can also file an application for rectification.
Grounds for Trademark Rectification in India
In India, Section 57 of the Trade Marks Act (1999) outlines the grounds for rectification of trademark and proceedings of the relevant authorities,
- Contravention or Failure to Observe Conditions: If any person feels aggrieved due to a violation or failure to observe a condition related to a trademark registered in India, they can apply to the High Court or the Registrar. Depending on the case, the High Court or the Registrar may decide to cancel or vary the registration of the trademark based on the grounds presented.
- Absence or Omission from the Register: Individuals aggrieved by the absence or omission of any entry in the trademark register, any entry made without sufficient cause, or any entry wrongly remaining on the register can apply to the High Court or the Registrar. Upon review, the High Court or the Registrar may order the making, expunging, or varying of the entry as deemed appropriate.
- Decision on Necessary Questions: In any proceeding under this section, the High Court or the Registrar has the authority to decide any question necessary or expedient in connection with the rectification of the register. This ensures that all relevant issues are addressed effectively during the trademark rectification process.
- Initiation of Rectification Proceedings: The High Court or the Registrar, may initiate rectification proceedings. After providing notice to the concerned parties and granting them an opportunity to be heard, the High Court or the Registrar can make any order as specified in subsections (1) or (2) based on the case’s merits.
- Notice of Rectification Order: Upon the High Court’s order rectifying the register, it directs that notice of the rectification be served upon the Registrar in the prescribed manner. Upon receipt of such notice, the Registrar must rectify the register accordingly, ensuring the necessary changes are made under the court’s decision.
Consequences of Trademark Rectification on Trademark
A registered trademark can be removed by an application filed by an aggrieved person although the due process and related evidence are taken into consideration before concluding any fact regarding the trademark. Any trademark which is not being used for 5 years or where the trademark registered has no honest utilization in the market for three years or above would be liable for removable from the Trademark Register. It is also observed as any trademark which is registered shall be used accordingly and maintains its image in the market. The absence of all the above-mentioned elements would result in the cancellation of the Trademark or elimination for a few years.
Only a ‘person aggrieved’ can initiate the rectification/cancellation proceedings. A ‘person aggrieved’ implies any party whose trading interests are affected by the presence of the registration on the register.
Rectification/cancellation applications can only be filed at the Trademark Registry (Ahmedabad, Chennai, Delhi, Kolkata or Mumbai) where the trademark was originally filed for attaining its registration.
On receipt of the application for rectification, official fees and statement of case the Registrar serves the application and the statement of case upon the Registered Proprietor calling upon it to file a Counter Statement (CS). Once the CS is filed, the matter reaches the evidence stage and the parties are required to file their respective evidence in the form of an affidavit/s deposed by their concerned authorised officer/s. Subsequent to both the parties having filed their respective evidence, the matter is set down for a final hearing giving both parties opportunity to make oral submissions on merits and the order is made in due course.
Yes, the Order from the Registrar is appealable before the Intellectual Property Appellate Board (IPAB). Appeals can be filed within 3 months from the date such an Order is communicated.
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