"Know what an abandoned trademark means in India. Learn the key causes, legal consequences, and remedies available to revive or protect your brand."

A trademark protects your brand and business reputation. But in India, if you miss critical deadlines for replies, evidence, or renewal, your trademark can be marked as abandoned.

The good news is: in certain cases, the law provides for condonation of delay or extension of time, but this is limited and not always available.

1. What is Abandonment of Trademark?

A trademark is considered abandoned when:

• The applicant/owner does not respond to Registry communications, or

• Fails to file required documents/evidence within prescribed time, or

• Does not renew the mark after 10 years.

2. Stages Where Abandonment Can Occur

(a) During Examination

• If no reply is filed to the Examination Report within 30 days, the application is abandoned.

• If the applicant does not attend a scheduled hearing, refusal or acceptance will follow, not abondenment.

Example:
“FRESH SIP” mark is objected to as similar to another mark. If the applicant fails to reply within 30 days → abandoned.

(b) During Opposition

1. Failure to File Counter-Statement (Rule 44)

• Must be filed within 2 months of receiving an opposition notice from the registrar.

• No counter-statement = application deemed abandoned.

2. Failure to File Evidence (Rules 45–47)

• Opposition and applicant exchange evidence.

• If either side fails → treated as abandonment of opposition/defense.

Example:
Company applies for TASTY DROP. Opposition is filed. Applicant files counter-statement but does not file evidence under Rule 46 → treated as abandoned defense.

(c) During Rectification

• If a registered owner does not reply to a rectification petition → risk of removal.

• If either side fails to file evidence (Rules 45–47 applied here as well) → treated as abandonment of their claim/defense.

(d) During Renewal

• Trademark must be renewed every 10 years.

• If not renewed, the mark lapses → treated as abandoned.

• Can still be restored within 1 year from expiry by filing a restoration request with surcharge.

3. Condonation of Delay & Extension of Time

The Trade Marks Act, 1999 and Trade Marks Rules, 2017 provide limited situations where time can be extended:

1. General Rule (Rule 109): Registrar may extend time for filing a counter-statement by up to 1 month on request.

2. Condonation of Delay in Filing Evidence: If evidence under Rules 45–47 is delayed, Registrar may condone delay if sufficient cause is shown.

3. Examination Reply:

   • Law prescribes 30 days for reply.

   • Extensions are not expressly permitted, but in practice, applicants sometimes file beyond 30 days with a condonation request or without. Success depends on Registrar’s discretion.

4. Renewal & Restoration:

   • 6-month grace period after expiry by paying surcharge.

   • After that, restoration allowed within 1 year.

   • Beyond 1 year → permanent loss.

Example:
A company misses the deadline to file evidence in opposition due to medical emergency of its director. If it files a petition with reasons, the Registrar may condone the delay.

4. Can an Abandoned Trademark Be Revived?

• Examination stage: Generally final. Sometimes writ petitions in High Court may revive if abandonment was wrongly recorded.

• Opposition stage:

  • Non-filing of counter-statement = final, no revival.

  • Delay in filing evidence may sometimes be condoned.

• Rectification stage: Similar to opposition.

• Renewal stage: Restoration possible within 1 year.

5. Can Someone Else Apply for an Abandoned Trademark?

Yes, abandoned marks are available to new applicants.
But if the original owner is still using the mark in trade, they can still take action in court under passing off.

6. How to Avoid Abandonment

• Track all deadlines with a docketing system or reminders.

• File replies, counter-statements, and evidence well before last date.

• Where delay is unavoidable, file a formal extension request with reasons.

• Always keep proof of filings.

Key Takeaway

• Abandonment can happen during examination, opposition, rectification, or renewal.

• Some delays may be condoned.

• Others (like opposition filing) are strict deadlines with no relief.

• Best strategy → never miss deadlines.

FAQs on Abandoned Trademarks

Q1. Can delay in filing evidence under Rule 46 be condoned?
Yes, if sufficient cause is shown. But Registrar has discretion.

Q2. Can delay in filing counter-statement be condoned?
No, missing the 2-month limit is fatal.

Q3. If my trademark expired 8 months ago, can I restore it?
Yes, within 1 year from expiry.

Q4. Can I apply for someone else’s abandoned trademark?
Yes, but first check if the earlier owner is still using it in trade.

Q5. Can delay in filing opposition be condoned?
No, the 4-month period from journal publication is strict.