Overview of Trademark Rectification
Rectification is the legitimate technique to address or correct a mistake or an omission that has been made in the subtleties of a trademark as recorded in the trademark register, after the trademark registration. It is possible that you may happen to register the mark in a wrong manner or it may remain available on the register after expiry. File rectification is the solution of such cases that Indian Trademark Act has drafted.
Proceeding further into Trademark Rectification lets first understand what “Trademark Rectification” is and when does it appear in trademark registration?
Any sort of changes, modification, rectification or alteration performed in the registered trademark or in the Register of Trademarks is known as Trademark Rectification.
In India Chapter VII of the Trademark Act of 1999 governs the right related to trademark rectification. Section 57 of the Trademark Act 1999 states that any individual bothered of such entry in the trademark register can file an application of the trademark rectification. However, trademark rectification does not work in every situation, in some cases, error can lead to cancellation trademark registration.
Who can file for Trademark Rectification?
- It tends to be recorded by the proprietor of the trademark itself for removing the certain error.
- It might likewise be recorded by some other individual or entity being wronged by such entry.
Note: that persuading proof is to be put together by the candidate, particularly on account of removal of any registered trademark of some other individual/substance from the register of trademarks.
How Rectification affects the Trademark?
In the wake of hearing the request by giving equivalent chance to the concerned parties, they may expel, drop, or rectify the trademark entry in the registry.
Common Grounds for filling an application for Trademark Rectification in India
- Not using registered trademark for over 5 years or more can lead to Trademark Rectification
- Non-renewal of the previous trademark
- Due to the latest knowledge
- In situations where consideration or expansion of certain more class (es) of goods or services to the business range of the registered trademark
- Conditions which are non-conformance to any or more grounds stipulated in Section 9 and Section 11 of the Indian Trade Marks Act of 1999
- The specific omission of an entry for example a disclaimer, a condition or a confinement
- Where the registration was acquired by distortion of, realities, like a prior mark enlisted and needs adequate reason for registration
- Situations where the mark was wrongly staying on the register and causing or liable to create turmoil
- When the renewal fee has not been paid
How to avoid Trademark Rectification?
- Keep renewing your trademark registration
- Doing everything to protect the particular character of the mark and not permitting getting misleading.
- Nonstop utilization of the mark, as non – constant use for a long time may place in dismissal classification.
- Take immediate and legal action as soon as any infringement is observed.
Registration Procedure for Trademark Rectification
- In situations where the trademark registration has denoted the trademark registration as Formalities Check or Send back to EDP, from there on the chance of being heard and redress is given and requires to be resubmitted. In such case, the amendment deed is to be set up to address all the worries of the trademark analyst.
- The application structure utilized for requesting trademark amendment is to be filed in triplicate, is the Form TM-O
- Ensure that your trademark correction application is an unmistakable and fresh explanation of grounds, identified with the application
- You should bolster your argument with solid proof to help correction of the predefined trademark.
- Aside from this we firmly recommend in case of Trademark Rectification contact an expert, and take effective help of the trademark rectification expert, who is very much educated about the most recent updates and advancements in the trademark market.
Corpbiz has a team of experts and professionals who willingly provide their masterly services for all tasks related to Trademark rectification, trademark registration, trademark objection.
Consequences of Valid Trademark Rectification on Your Trademark
The registered trademark can be requested to be removed from the register in the event that it is demonstrated that the trademark was registered with no true blue goal and where there has been no genuine utilization of the trademark increase to a date three months before the date of use and 5 years have slipped by after registration and still not put to utilize.
Note: that the time of five years is to be determined from the date on which the mark was really put on the register for example the date on which the enrollment was requested to be made and not from the date of the application.
On receipt of the application, the Registrar serves notice to the enrolled owner to record a counter articulation.
When the counter explanation is documented the issue shows up at the proof stage. The parties may require recording their particular proof as an Affidavit. After this, there will be a consultation. In this way, the request is passed.
To protect your registered trademark from rectification or cancellation or removal you need to adopt necessary precaution for example the trademark renewal every once in a while, not doing anything which will destroy the unmistakable character of the mark or not permit the mark to stay unused for a period surpassing five years.
Frequently Asked Questions
A standard practice done by the trademark candidate is that they record applications in all the 45 classes in spite of the fact that the mark is really utilized for one or two classes. This is named as defensive registration and the court has held in different cases that such registration ought not be supported.
Hence, if your trademark rectification has been recorded against you and it is established that no expectation of really utilizing the mark as for the items and administrations the imprint is available an appeal for retraction can be petitioned for removal of the mark from the trade register.
The national statues- the trademarks Act 1999 and rules made such as International multilateral convention, national bilateral treaty, regional treaty, decision of courts etc.
Any person aggrieved by the registration of a trademark can apply for rectification by showing the irregularities in the registration.
Any fraud carried out by the registrar, error in registration, non-payment of registration, false entry made, are the grounds for rectification.
The term trademark cancellation talks about the application which are petitioned for removal of any recently registered trademark (or service mark) from the register of trademarks.
The application can be made yet on the off chance that the suit is pending under the watchful eye of the civil court with respect to the legitimacy of trademark then the meeting must be directed by the IPAB and not the registrar.
Corpbiz will take 5-10 days to prepare the trademark rectification deed and filing.
For filing new applications there are forms such as Form TM-1, TM-2, TM-3, TM-8 etc. at 4000 Rs. To file a notice of opposition Form TM-5- Fees is 2500Rs.