Answers to all these questions are given below in the article. To begin with, we need to understand
WHAT IS NON-USE OF MARK?
Non-use of mark implies that the registered trademark has not been in use for the said period, given in the Act. There is no single proof of mark being used in the form of business.
- If the trademark was registered with malafide intent to use the mark or with no intent to use the mark;
- If the mark is not used for more than 5years and there is no evidence of the mark being used at all
Under these two situations, the registered mark can be called for cancellation, and rectification of the trademark can be filed against the mark.
Section 47 of the Indian Trademark Act, 1999 exclusively deals with cancellation or removal of trademark if there is no bona fide use.
TIME PERIOD (WHEN CAN IT BE DONE):
If a trademark is not used for about five years and three months from the date on which it was registered in the trademark registry- non-use cancellation can be filed against the trademark.
WHO CAN FILE?
Any person who is aggrieved by the mark can file for the cancellation of the mark on the grounds of non-usage. The term “aggrieved party” is not defined anywhere in the Act. The Courts have relied upon definitions from various judicial pronouncements to define the term. As far as we can define- aggrieved party means and includes those who have a substantial interest in removing or canceling the mark.
An application of rectification has to be filed with the registrar of trademark or IPAB under the following forms:
Tm-43 – In case of collective or certification mark
Tm-16 – the owner of the mark
Tm-26 – any applicant apart from the owner
Once the application is filed, a notice of rectification will be given to the owner, and they will be called for a hearing. After giving reasonable opportunity to both the parties, the validity of the mark will be decided.
These proceedings are original; therefore, all evidence has to be filed in an affidavit form. The cross-examination of evidence is allowed if desired by the deponents.
Once the registrar decides upon the matter-the registration stands canceled. However, the aggrieved party always has an option to appeal before IPAB.
BURDEN OF PROOF:
The burden of proof will be upon the person who wants to cancel or remove the mark from the Registry of Trademarks. Appropriate evidence has to be shown to support the cancellation claims.
RESULT OF RECTIFICATION:
Once the registrar believes that the registered marks deem to stand canceled, the registration will be canceled.