An Overview of Trademark Restoration
Trademark Restoration is the process or method of bringing back to the Trademark Register the mark which has been removed or eliminated from the Register of Trademarks, caused by the absence of timely Trademark Renewal of the actual or previous Trademark Registration. Any such removed Trademark/Service mark from the Trademark Register on the grounds of non-renewal of the previous registration can be stored to the Trademark Register even after six months, and also within one year from the expiry date of last registration. The application for Trademark Restoration can be filed in Form TM-R along with the Restoration fee and the prescribed Renewal fee. While considering the request for the Restoration, the Trademark Registrar should assess the interest of all other affected individuals. After the acceptance of the request, the Trademark Registrar should make an advertisement in the Trademark Journal regarding Trademark Restoration.
Our Trademark experts provide services for Trademark Renewal, renewal within 6 months from the expiration date of its last registration and Trademark Restoration removed from the Trademark Register.
What is a Trademark?
A Trademark is a logo, device, word, name, or symbol used in the trade of products to differentiate it from others and to show the source of such goods. Trademark Rights are generally used to prevent others from using an identical mark. However, this doesn't prevent them from selling or producing similar goods under a different mark. A Trademark is especially vital for a new company or product. Most businesses or entrepreneurs invest an important amount of money and time prior to the launch of a new product or company in designing a Trademark. Any illegal use of a registered Trademark by another company or individual gives the Trademark owner the right to take legal action, making a company’s Trademark one of its most valuable assets.
Different Forms Required for Trademark Restoration
- Form TM-10: This application form is filed when the Trademark Renewal process is done within six months before the expiration date. In this case, renewal fees & surcharges are applicable.
- Form TM-12: This application form is filed when the process of Trademark Renewal opted for is within the timeline. There is no surcharge fee involved.
- Form TM-13: This application form is to be filed when the Trademark is removed from the Trademark Register. The process of Trademark Restoration and Renewal will take place six months to one year after the expiration date of the Trademark Registration, and both the restoration & renewal fees are levied on the candidate.
Documents Required for Trademark Restoration
Following are some vital documents required for Trademark Restoration:
- Identity proof & address proof of the applicant;
- Copy of the application form of Trademark Registration (Form TM-A that was used for filing the actual application for the Trademark Registration);
- A copy of Trademark Registration Certificate;
- Power of Attorney if the applicant or candidate is an authorised representative or an agent;
- Moreover, a statement should also be presented stating the reasons or grounds for failing to renew the Trademark within the given time.
Procedure to be followed for the Trademark Restoration
In order to restore the lapsed Trademark, whether the Trademark owner or their behalf, an authorised agent can perform all the vital steps enumerated in the procedure below:
Step 1: Filing of Trademark Application
- The owner of a Trademark or the authorised agent has to file the application form TM-R along with the pertinent documents as mentioned above and the prescribed fees;
- The application has to be filed with a statement expressing the reasons for failure to renew the lapsed or expired Trademark;
- The filing for Trademark Restoration should take place after 6 months from the expiry date but within 1 year from the proposed date.
Step 2: Check the Application Status
- Once the owner files the application for Trademark Restoration, then the owner of Trademark is expected to keep a check on the application status from time to time as there are various time-bound actions that are to be performed by the applicant from the Trademark Registry.
- The continuous process of Restoration application status check has to be observed until the Trademark Registry is through with the application process comprising the formality checking the application quality along with other examinations.
Step 3: Advertisement in the Trademark Journal
- While checking the Restoration application, the Trademark Registrar should consider the interest of other affected persons;
- Once the Trademark Registrar has completed the examination process of the Restoration application and has accepted the same, the Trademark will be then advertised in the Trademark Journal, which is an Official Gazette which states the objectionable and acceptance Trademarks.
- A chance is also given to the 3rd party, that is, the public, to file any objections underlying the Trademark. After the lapse of the prescribed time, if no objections are raised, the Trademark will be entered into the Register of Trademarks.
- If a Trademark is published in the Trademark Register, it shows the Trademark Restoration for another period of 10 years.
What are the consequences of failure to restore the Trademark?
- Restoring the Trademark is the last opportunity given to the Trademark owner by the Trademark Registry. The consequences of failing to restore the Trademark are unfavourable in nature. If the Trademark owner fails to file the application for Trademark Restoration within the given time or pay the requisite fees, the Trademark Registrar shall compulsorily remove the Trademark from the Trademark Register.
- The above condition shall only be practised if prior notice has been served by the Trademark Registrar by way of advertising the notice, showing the intention to remove the Trademark from the Trademark Register in the Trademark Journal.
- When the Trademark is removed from the Trademark Register, the owner of Trademark loses all the rights linked with the same. The right to file for violation and safeguard the brand from competing businesses would be negated from the purview of rights held by the Trademark owner.
Frequently Asked Questions
Trademark Restoration is the process or method of bringing back to the Trademark Register the mark which has been removed or eliminated from the Register of Trademarks.
A registered Trademark is valid for only ten years which can be further renewed for another ten years, and Trademark Renewal is the only option left in such cases.
If the owner fails to renew its Trademark, then the Trademark Registrar will issue an advertisement in the Trademark Journal showing the Trademark Removal.
The Trademark Registry would indicate the Trademark Status as abandoned when it has fallen into disuse.
If a Trademark is dead or abandoned, you can refile for the Trademark and obtain Trademark Registration; however, you will need to go in & start from scratch.
There is no particular limit to the number of times you can renew your Trademark application; you need to renew your Trademark every 10 years, as long as you are using the Trademark.