Rectification of Trademark in India: Its Concept and Procedure for Filing
Shivani Jain | Updated: Nov 25, 2020 | Category: Trademark
Trademark Rectification or “Rectification of Trademark” denotes a legal process that aims to correct or rectify any act of omission an error that has been made in the details of the trademark after the process of trademark registration.
Further, the term Trademark Rectification not only covers the correction of an omission or error but includes any change, alteration, or modification which the applicant wants to make in the application for Trademark Registration or after getting the certificate of registration.
In this blog, we will discuss the concept and procedure for filing Rectification of Trademark in India.
Concept of Trademark Rectification
The term “Trademark Rectification” signifies a method of correcting an act of error or mistake. Further, if in case the registrar points out any mistake or error, then the applicant needs to file an application for rectification.
Further, the ambit of Trademark Rectification includes change, alteration, or modification in the application for trademark registration as well.
Moreover, an applicant can file for rectification at any time whether the said mark is registered or not, and the same includes cancellation of registration as well.
Who can File Petition for Rectification of Trademark in India?
An aggrieved party can file a petition for the trademark rectification, removal of the registered mark or the cancellation of registration.
Further, the term “aggrieved person” means a person whose interest in trading gets affected by the presence of the registration on the trademark register.
Where to File Petition Trademark Rectification?
For Trademark Rectification or Cancellation of Trademark, the applicant needs to file an application with the Trademark Registry, where the application for registration was originally filed. Further, in India, the branches of Trademark Registry are located in Chennai, Mumbai, Ahmedabad, Delhi, and Kolkata.
Facts to be Proved in a Trademark Rectification Case
The facts to be proved in a Trademark Rectification case are as follows:
- That the petitioner has actually suffered;
- Proper evidence needs to be submitted that the trademark owner is not using the said mark
Further, the burden of proving such facts is with the aggrieved person. Also, it shall be pertinent to note that anonymously on cannot file the petition for Rectification of Trademark in India.
Grounds for Rectification of Trademark in India
The different grounds for filing the petition for Rectification of Trademark in India are as follows:
- To alter the details, address, or any information filed by the applicant;
- To change or modify the name of the applicant for obtaining trademark registration;
- To change the classes of the trademark;
- To modify the classification or description for the goods and services or mark or symbol;
- To change the design and content of the mark;
- To rectify the mistake or error made in the application for trademark registration;
- To rectify any mistake or error made while entering information in the register kept with trademark registrar;
- When the trademark owner has not timely applied for trademark renewal;
- Nonpayment of the fee for Trademark Renewal;
- Any other grounds mentioned by the Trademark Registrar;
- Also, non-conformance to any ground stated under Section 9 and 11 of the Trade Marks Act 1999;
Documents Required for Trademark Rectification
The documents required for filing the case of Trademark Rectification are as follows:
- Trademark Application Number;
- Power of Attorney;
- Valid Identity Proof for the Applicant in the form of Aadhar Card, PAN Card, Voter ID, or Driving License;
Procedure for Filing Rectification of Trademark in India
In India, the applicant needs to file the application for rectification of trademark either with the “Zonal Registrar of Trademark” or with the IPAB (Intellectual Property Appellate Board). Further, the steps involved in the procedure for filing Rectification of Trademark in India are as follows:
- Firstly, the applicant needs to file the application or trademark cancellation or rectification in triplicate;
- Further, the application must be made either in Form TM 26 or Form TM 43 for the collective or certification of marks;
- The application for rectification must be accompanied by a clear statement of grounds involved;
- After receiving the application for rectification, the registrar will then serve a notice to the registered proprietor to file his/ her counter statement;
- After the filing of the counter statement, the matter will then be listed at the evidence stage;
- At this stage, the parties involved will file their relevant evidence in the form of an Affidavit;
- Lastly, in the next step, the court will hear the matter and will pass an order accordingly;
Ways to Avoid Trademark Rectification
The different ways to avoid the case of Trademark Rectification are as follows:
- Timely Renewal of Trademark Registration;
- Prevents the Original Character of the Trademark granted, so that it doesn’t become deceptive in nature;
- Must not keep the trademark unused for the period of 5 years and 3 months;
In a nutshell, Trademark Rectification” signifies a method of correcting an act of error or mistake. Further, it not only covers the correction of an omission or error but includes any change, alteration, or modification which the applicant wants to make in the application for trademark registration or after getting the certificate of registration.
However, to prevent the case of cancellation or rectification or removal of a registered trademark from the register kept by the trademark registrar, there is a need for the applicant to take proper precautions as mentioned above.
In case of any other doubt or dilemma, reach out to Swarit Advisors, our experts have more than 10 years of experience in the matter concerning Trademark Registration, Trademark Renewal, and Trademark Objection.
Also, Read: What are the Advantages of Trademark Registration?
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