Trademark is a unique sign or any mark, which represent the business. It makes the product or service different from others available in the market. For registering trademark, the applicant must file an application with the relevant trademark registrar in prescribed format. If registrar observes any concern, he can mark CHK Fail and request trademark rectification of trademark application.
In this blog, we will explain about the trademark, reasons for trademark rectification, and how to file Trademark Rectification.
What is Trademark Rectification?
It’s a legal procedure for making correction or rectification of an error or omission which has been made while furnishing the details of the trademark. These errors are recorded in the trademark register, after its registration. This can happen if mark may have been wrongfully registered or still have remained in register even after its expiry.
However, for such cases, the Indian Trademark Act provides the provision to file rectification of the registered trademarks.
What is a Trademark?
Trademark is a unique symbol or word or logo, which is used to represent a business, product or service. After the trademark registration, the same logo, symbol, series or work cannot be used by any other person or organization. Trademark remains forever, as long as it remains in use and complete paper has been done, and fees are paid.
What are the signs of trademark?
What can be Registered as Trademark?
What are the Advantages of Trademark Registration?
Who can file Trademark Rectification Petition?
An aggrieved party has the right to file a petition for cancellation or rectification of trademark registration or removal of registration mark.
What are the grounds for the filing trademark rectification?
Section 57, of Indian Trademark Act 1999, (Hereinafter referred to as Act, provides the following grounds for filling trademark rectification;
- If irregularities were observed in trademark registration. This means that trademark was registered without sufficient cause, obtained by misrepresenting the facts or same mark is already registered;
- If the trademark was wrongfully remained on the register, if it was violating the legal provisions of the Act, or may cause any confusion;
- According to section 57(1), of the Act, if Contravention or failure to observe a condition entered in the register in relation to the registration of the mark, the aggrieved can file trademark rectification;
- Further, Trademark rectification can be filed, if register suffer from the absence or omission of entry; for example a condition, a limitation or a condition of registered mark (Section 57 (2));
- Entry or defect while making any entry in the register;
- The fee for renewal was not paid;
- Registered trademark is not in use from last five years by registered proprietor;
- In case where the trademark was not renewed ;
- According to section 31 (1) of the Act, original registration of trademark shall be the prima facie evidence to prove the validity of the mark in all legal proceedings relating to trademark.
Read our article:How Can You Apply For Online Trademark Registration in India?
What are the precautions to be undertaken to prevent the rectification?
- Time to time renewal of mark should be made;
- Mark should not be kept unused for a period exceeding five years;
- Preserving the original character of the mark and avoiding it’s becoming ambiguous.
What are the important aspects of filling Trademark rectification?
The reply should be professional;
It is advised to the respond for rectification shall be drafted in a professional way. The reply to the concerned rose by the trademark examiner shall be in responded back in such a manner, that the chances of successful registration can be improved.
Further, the rectification of trademark does not guarantee the registration of trademark. However, a professional can make its efforts to address the concern raised by the registrar.
After filing the rectification application, keep track on the application status. Sometimes while this process applicant needs to respond back time to time. Hence, the periodic check of application status becomes important.
Trademark journal is an official gazette of trademark registry. In case the application gets accepted by the registry of trademark. The accepted trademark is advertised in trademark journal. Once the approval trademark is advertised, the third party may oppose the registration.
Trademark act provides a provision to other people to file a notice against the registered trademark within the six-months from the date of publication. The counter-statement shall be made within the 2 months after receiving the notice.
What are the documents required for the trademark rectification?
- Rectification number provide while filing an application;
- Power of attorney signed by the applicant;
- Govt. Identity proof of applicant
What is the procedure for trademark Rectification?
- File a rectification application prescribed format;
- Along with the application, attach the statement of the case and shall be submitted along with the prescribed fee;
- The application needs to be submitted with registrar or IPAB;
- Further, after receiving the application, registrar serves notice to the proprietor for filing the counter-statement;
- Once the counter-statement is filed, the case reaches to the evidence stage. Parties submit their evidence;
- In the last stage after hearing, the order shall be passed.
Trademark rectification can be prevented if the applicant takes the precautionary measures, like renewal of trademark. We at Corpbiz will guide you that how you can save time and money before reaching the stage of trademark rectification. From trademark registration to renewal or filing an trademark objection, our team of expert will help you with all the end to end process.
Read our article:Know How to File Trademark Objection Reply