Trademark Rectification

Section 57 of Trademarks Act, 1999 lays down the provisions for rectification of trademarks. Rectification of TM is an opportunity given to the aggrieved person to apply to Registrar or Appellate Board of his respective jurisdiction to alter the error or omission made by the Registrar.

All about the rectification of trademark!

Trademark rectification is a legal process for post-registration alterations or changes. An application for rectification shall be made in the prescribed manner in form TM-O to the Appellate Board or Registrar.

Grounds for rectification or removal application

  • Modification or alteration need due to the amendment to the prevailing laws –  For instance, the New Rules 2017.
  • Mark wrongly registered or omitted from the Register- Clerical error.
  • Non-use of the mark for five years or more - It is eligible for cancellation of the trademark from the register unless an evidence of use or intent to use in contrary.
  • Mark registered by misrepresentation of facts or fraud,
  • Classes specified are not in conformity with the applied classes,
  • Mark falls under absolute or relative grounds for refusal under the Act- Section 9 and 11 of the Act.

Filing provisions

  • Filed by an aggrieved party to the Registrar of Appellate Board of Intellectual Property in the Form TM-O in the prescribed manner.
  • New Rules have replaced TM-P in the place of old forms TM-26 and TM-43 (collective or certified TM) to simplify the filing procedure.
  • After receiving the application, the tribunal has the discretion to decide whether vary a registered entry or cancel the registration.
  • Evidence shall be a mandatory requirement showing proof that aggrieved person is affected to protect the efforts of existing trademark owner.

 

The application shall not be filed anonymously    

No, the application shall not be filed anonymously. It shall contain the applicant’s name with a statement of fact as evidence that he has been affected.

It saves the right of parties which can get affected due to rectification or removal.

 

Object of the provision

  • The object of the provision is to prevent trafficking of trademark and monopoly by registering a name without the intent to use.
  • To provide an opportunity to alter clerical errors and omissions after registration of the trademark.
  • To ensure the protection of a trademark being used.

 

Steps to avoid rectification

  • Renewal of marks periodically,
  • Regular use of mark,   
  • Take action against infringement of your mark,
  • Avoid acts that can prejudice the distinctive nature of your product or service.

Rectification thus provides a platform to correct the entries to the aggrieved party as per the legal procedure laid down under the Act.


 


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