Overview of Trademark Rectification

Trademark Rectification is the process through which an individual applies to remove a registered trademark from the Trademark Register. It allows for modifications or corrections of any errors made in the details of a trademark as recorded in the Register after its registration.

An individual can file for Trademark Rectification or Cancellation based on various grounds, such as an incorrect entry in the Trademark Register or errors during the trademark registration process. Additionally, if a trademark has not been used for a specified period following its registration, an application for rectification or cancellation can be made.

In India, Chapter VII of the Trade Marks Act, 1999, governs the rights related to rectification. According to Section 57 of the Trade Marks Act, any person affected by the incorrect entry in the Register can file an application for rectification. However, rectification is not applicable in all situations, and certain errors may lead to the cancellation of the trademark registration.

Eligibility to File for Trademark Rectification

Owner
The owner of the trademark can file for rectification to correct any errors or mistakes in the registration.

Third-Party
Any individual or company who is aggrieved by the trademark entry can also file for rectification. The applicant must present sufficient evidence to support the request, especially if seeking the removal of another party's trademark from the register.

Grounds for Filing a Trademark Rectification Application in India

Section 57 of the Trade Marks Act, 1999 outlines the grounds for filing a trademark rectification application. These include:

1. Failure to Observe Requirements:
   Under Sections 57(1) and (2), an individual aggrieved by any incorrect entry in the register can apply for rectification. This may include failure to pay the renewal fee or failure to comply with specific conditions regarding the trademark.

2. Errors in the Register:
   If the trademark register contains errors or omissions, such as missing disclaimers, restrictions, or the wrong entry regarding a trademark, an application for rectification can be filed.

3. Misrepresentation or Fraud:
   If the registration was obtained through misrepresentation or fraud, or if the mark is similar to an already registered trademark, rectification may be sought.

4. Contravention of the Act:
   If the trademark is in conflict with Sections 9 or 11 of the Trademark Act, or causes confusion in the market, it can be rectified.

5. Other Defects or Omissions:
   If there are any defects or omissions in the registration entry, the trademark owner or an aggrieved party can apply for rectification.

6. Procedure for Rectification:
   After giving notice and an opportunity to be heard to the concerned parties, the Registrar or the Appellate Board can decide to vary, cancel, or remove the entry in question.

How to Apply for Trademark Rectification?

There are three main ways to apply for trademark rectification:

1. Trademark Owner's Application:
   The trademark owner can file for cancellation or rectification using Form TM-16, along with the prescribed fees.

2. Registrar-Initiated Rectification:
   If initiated by the Registrar, the application should be made in Form TM-M, along with the applicable fees.

3. Third-Party Application:
   A third party can file for cancellation or rectification using Form TM-26, with the required fees.

In all cases, the application must clearly state the reasons for rectification and provide supporting evidence.

How to Apply for the Rectification of a Trademark

The process of applying for the rectification of a trademark can be categorized into three types:

1. Trademark Cancellation or Rectification by the Trademark Owner: File Form TM-16 along with the required fees.
2. Trademark Cancellation or Rectification initiated by the Registrar: File Form TM-M along with the required fees.
3. Trademark Cancellation or Rectification initiated by any individual: File Form TM-26 along with the required fees.

Process of Trademark Rectification

The process for rectification or cancellation remains the same whether it is initiated by the trademark owner or the Registrar. Below are the steps involved:

1. Drafting the Application

The first step is to fill out the appropriate form with all the necessary details.

2. Filing the Application Form

After completing the form, the applicant needs to file it with the Trademark Registrar and pay the prescribed fees.

3. Submission of Documents

Along with the application form, the applicant must submit any supporting documents and required modifications, such as proof of address or identity, depending on the nature of the modification.

4. Approval by the Government

The final step is the approval of the application by the Registrar, and any necessary changes will be made to the Trademark Register.

When the rectification or cancellation is initiated by an individual, they must apply using the relevant form, providing the reasons for the rectification. The application is then submitted to the Trademark Registrar along with the required fees. The Registrar will issue a notice to the trademark owner to file a counter-statement. Both parties will need to submit affidavits and supporting evidence. After reviewing the case, the Trademark Registrar or Board will decide whether to add, alter, cancel, or remove the entry in question.

The Trademark Act and Rules offer a legal framework that provides relief to applicants and affected parties seeking cancellation or rectification of a trademark.

What are the Consequences of Trademark Rectification on your Trademark?

A registered Trademark can be requested to be removed from the Trademark Register in the event that it is established that the Trademark was registered with no factual blue aim and where there has been no honest utilization of the Trademark increase to a date three months prior to the date of use and five years have glided by after Trademark registration and still not put to utilize.

Note: The time of five years is to be determined from the date on which the mark was put on the Trademark Register, for instance, the date on which the enlistment was requested to be made and not from the application date. On application receipt, the Trademark Registrar serves notice to the enrolled proprietor to record a counter expression.

When the counter explanation is acknowledged, the issue shows up at the evidence stage. The parties may need to record their specific proof as an Affidavit. After this, there will be a discussion. In this ways, the request is passed.

To safeguard your registered Trademark from cancellation or Rectification, you need to accept essential precaution; for instance, the renewal of the Trademark every once in a while, not doing anything will destroy the distinct character of the mark or not allowed the mark to stay unused for a time exceeding five years.