Rectification of Trademark in India : Types and Procedure | Filinglounge
Trademark Registration is a type of intellectual property rights under which a visual symbol like word, name, color combination, etc. is used by businesses to distinguish its goods and services from the other similar products or services.
Trademark rectification means making any changes or refinements in any previously registered trademark/service mark by the owner of the trademark itself. Trademark registration in India is an important step towards brand building and its security. Sometimes the application for Trademark registration is prone to errors and mistakes. As a solution for modification of errors, there are provisions prescribed under Trade Marks Act to rectify details submitted in application. Modification of trademark is possible both, before and after the registration.
In India, the Chapter VII of the Trade Marks Act of 1999 contains provisions and rights regarding the trademark rectification and cancellation. The application for trademark rectification is filed by the owner of the registered trademark, and the application for trademark cancellation is filed by any other aggrieved person for the purpose of removing any registered trademark of any other person/entity from the national register of trademarks.
For the trademark rectification, an application can be filed before the Trademark Registry appropriate Jurisdiction. The Petition for the rectification of the trademark must be filed in the same jurisdiction where the application for a trademark has been made.
The most common grounds for filing a rectification of trademark in India are:-
• To change the name of the applicant for trademark registration.
• To change address of the applicant for trademark registration
• Making any changes or rectifications in connection with any registered trademark/service mark
• Non-use of any registered trademark for more than five years by the registered proprietor.
• Not renewing within due time of renewal.
• To alter the description or classification of goods and services or mark/symbol.
• To change the mark or design or any other content of the mark.
• To rectify any mistake or error made while applying for trademark registration.
• Non-renewal of the original or previous registration of the trademark.
• Non-conformity with one or more grounds stipulated in Section 9 and Section 11 of the Indian Trade Marks Act of 1999.
The application for trademark rectification is to be filed with the concerned zonal Registrar of Trade Marks or with the Intellectual Property Appellate Board (IPAB). The procedure for trademark rectification in India involves the following compulsory requirements:
• The application form used for the rectification of trademark must be filed in triplicate.
• The application form used for demanding trademark rectification, which is to be filed in triplicate, is the Form TM-26, or the Form TM-43 for the collective or certification marks.
• A clear, crisp, proper and explicit statement of grounds, associated with the application of rectification of trademark.
• On receipt of the application, the Registrar serves notice to the registered proprietor to file a counter statement.
• Evidences to support rectification of the specified trademark. The parties file their respective evidence in the form of Affidavit
• At last hearing of the case takes place and order of the court is passed.
The TM registration application must be filed with utmost care to prevent any errors during filing as modification becomes an additional burden on the applicant as well as the registry. It also delays the trademark registration process adding the unnecessary processing period for the registration. This is why proper precautions must be taken during its filing and getting it renewed from time to time, taking measures to secure the distinctive character of the mark and not abandoning the mark.
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