How to File Trademark Rectification If Error in Trademark?
The applicant must remove all the errors in the trademark application so as to get his mark approved and registered by the registrar. Hence this article will discuss about what is the procedure to file trademark rectification in case any error occurs in the trademark application.
Trademark is any word or symbol which helps a company to distinguish and give uniqueness to their product from the rest of the products in the market. When a trademark is under the process of registration, the registrar may sometimes, due to some errors in the trademark application, raise objects to proceed further. Therefore, an important question that arises is how to file Trademark rectification if there is an error in the trademark?
What do you mean by the term “Trademark Rectification”?
Trademark Rectification is a legal procedure to rectify or correct the errors that may have occurred in the application at the time of submission for registration. Such rectification is recorder in the register once the mark is registered. Errors may occur in terms of wrongfully registering a mark or the expiry of the mark and wrongly remaining in the register or any others grounds for a refusal to register a mark.
The Indian Trademarks Act, 1999 provides the provision to file Trademark rectification for any instances of refusal to register a mark.
Who can file a Trademark Rectification?
Any aggrieved person whose trading interests are affected can file for trademark rectification for rectifying or cancellation of the Trademark registration or removal of a registered mark.
Grounds for filing Trademark Rectification
- Any error in the details of the mark such as classification, class, design or description
- Any error in the details, in the application form such as wrong contact details or address.
- Wrong details entered or specified in the register.
- Removal of the Trademark when it has not been used for five years and three months.
- Making modification in the application such as details relating to change in the address or change in the name of the applicant.
- Any other ground accepted or as prescribed by the Registrar.
- All of the grounds for the rectification mentioned above are recognized at the end of the applicant, however, the registrar in some instances may order for the rectification by himself on observing some errors.
- The Registrar may order for the rectification in cases where an aggrieved person makes an application for rectification or removal.
Procedure for Trademark Rectification
The person must file a rectification application along with the necessary documents in a prescribed format
Drafting the Application
Further, the applicant needs to fill the form specifying all the details in the application.
Filing the Application Form
The applicant must file the form with the registrar along with the prescribed fees.
Approval of Government
The final step involves the approval made given by the registrar and later making modifications in the register as needed.
When an application for rectification is made by an aggrieved person, he must apply in the relevant form along with specifying the reasons for rectification and make a submission to the registrar with the prescribed fees.
Registrar shall provide a notice to the registered holder of the mark to file a counter statement. Both the parties are required to file an affidavit producing their evidence.
Upon hearing both the parties the Registrar or the Appellate Board may vary, cancel, remove or add the effect of rectification.
Therefore, both the applicant and the registered holder get the right to seek rectification or cancellation of the trademark under the Indian Trademark Act and Rules.
Documents required for Trademark Rectification
Documents that are required for the registration of a Trademark rectification are:
- Applicant’s Government identity proof.
- At the time of filing an application, a rectification number.
- Power of attorney signed by the applicant.
The Indian Trademarks Act, 1999 provides provision on filing the Trademark rectification if an error in the trademark occurs. Every person has a right to file, register or apply for rectification under the Act.
The Rectification of the Trademark can be prevented by taking precautionary measures like a renewal of the trademark after the end of its registration. Also protecting the mark from being infringed by the others helps to prevent trademark rectification. If the registered holder prevents its mark by being misused or mislead by someone, the mark can be protected. Immediate legal action can be taken by the holder of a well – known mark as soon as any infringement is observed.
For filing Trademark Rectification, the applicant must give all the details related to the rectification. The Trademark rectification application can be made by an aggrieved person at the office of the Indian Trademark registry.