Trademark Rectification is the mechanism in which a person applies for removal/ cancellation of a registered trademark from the Register of Trademarks. It is mandatory to file an application for rectification of a registered trade mark before the same Trade Marks Registry where the application for its registration was filed. Also, rectification can be filed if during the filing stage or after that, the applicant of the trademark realizes that the application has minor errors or if some alterations are required then the applicant can file for rectification with the Registrar.
Grounds of rectification
The grounds for rectification can be classified as follows:
- Error in the application form like the wrong address or contact details.
- Error in the details of the trademark such as class, description, classification, and design.
- Error in the details entered in the register.
- Modifying details in the application such as the change of applicant and change of address.
- Removal of the trademark when not in use for five years and three months.
- Any other grounds prescribed and accepted by the Registrar.
- All the above grounds for rectification are identified at the applicant’s end; however, there can be instances where the registrar orders for rectification on learning of some errors.
- Registrar can also order for rectification when an aggrieved person makes an application for rectification or removal.
Who can file?
Any person aggrieved by the trademark can apply for rectification or cancellation of the trademark.
The documents required for filing a rectification/ cancellation action are as follows:
- An application is to be made on the requisite form (TM-O)
- A statement of case, setting out the nature of the Applicant’s interest, facts upon which the case is based, and the sought relief.
If initiated by the Proprietor of the mark, the following steps have to be followed:
- Submission of documents: The proprietor must submit the relevant application(s) along with the alterations required and relevant documents for supporting the alterations
- Drafting of the application: The applicant then needs to fill the relevant form with all the details.
- Filing of the form: The next step is to file the form with the Registrar along with the prescribed fees.
- Approval of government: The last step is approval by the Registrar and modification in the register as required.
When the rectification is initiated by an aggrieved person, then the process is: –
- The aggrieved person must apply in the relevant form (as set out above) along with the reason for rectification and submit it to the Registrar with the prescribed fees.
- Then the Registrar will send notice to the proprietor of the trademark to file a counter statement–
- Both parties will have to file affidavits producing their evidence.
- Order for rectification shall be passed by the registrar, if the application is full to the satisfactory of the registrar.
Forms and fees
Form: An application under Section 57 is to be made in the Form TM-O and fees to be paid depends upon the category of filing:
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Effect of rectification
The Tribunal i.e. the Registrar or the High Court, after giving notice as well as an opportunity of being heard to the concerned parties, may cancel, vary, add or remove the entry in question.