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What Is the Validity of a Non-use Trademark

Updated on :  

08 min read.

A trademark is a logo or symbol attached to the goods or services of a company or an individual. It gives a distinctive feature to the products or services of an individual or organisation from that of others. 

In India, the Registrar of Trademarks (Registrar) issues trademark registration under the Trademarks Act, 1999 (Act). Once an individual or company receives the trademark registration for their products or services, they need to use it for their goods or services. Otherwise, the Registrar can remove the trademark registration on the ground of non-use of the registered trademark.

Validity of a Trademark Registration

The Registrar grants registration of the trademark for ten years. Thus, a trademark registration will be valid for ten years from the date of its registration mentioned in the registration certificate. When the Registrar issues the trademark registration, he/she shall record the trademark registration in the Register of Trademarks (Register).

The trademark proprietor can renew the trademark registration for another ten years by filing the trademark renewal application to the Registrar before the expiry of the initial registration. 

Removal of a Registered Trademark Not in Use

Section 47 of the Trademarks Act, 1999, provides that the Registrar can remove the trademarks from the Register on the following grounds of non-use of the trademark:

  • No valid (bona fide) intention to use the trademark

Any person can file an application to the Registrar for removing the trademark from the Register on the ground that the trademark proprietor obtained registration without a valid intention to use the trademark for the goods or services. However, before filing an application under this ground, the third party should ensure that the trademark proprietor has not used the trademark for three months before the date of filing the application. 

Bonafide use of a trademark means using the trademark sincerely and legitimately. Using a trademark in an advertisement without actually marketing the goods or services cannot amount to bonafide (genuine) use of the trademark. However, a company using a trademark in its communications and credentials with the public will amount to bonafide use of the trademark.

  • No usage of the trademark by the proprietor for five years from registration

The Registrar can remove a trademark from the Register if the proprietor has not used the trademark for a continuous period of five years or more to the goods or services. The Registrar will calculate five years from the date on which he/she enters the trademark in the Register. Therefore, when an individual or company does not use their registered trademark for five years from the date of its registration, they will lose rights over the trademark.

There is no specified time limit to start using the trademark after its registration. However, using the trademark at the earliest will prevent its removal from the Register on the grounds of non-use of the trademark. The proprietor can use the trademark even before obtaining the trademark registration certificate. 

A proprietor or company can use the trademark within and outside the country. A company can use its trademark in the brand’s official website, its internal communications, notices, and advertisements.

Who Can Apply For Removal of a Non-Use Trademark?

Any person can file an application to the Registrar or Appellate Board ( Intellectual Property Appellate Board) to remove the trademark from the Register if an individual or company does not use the registered trademark for five years or has obtained the trademark without any bona fide intention of using it.

Any third party can file the application for removal on the ground that a trademark is not in use for five years after three months from the date of five years of non-usage of the trademark. A third party can file for trademark removal on the ground that the registration is obtained by the trademark proprietor without bona fide intention of its use when the trademark is not used for three months before the application is filed. 

Grounds Where a Trademark Cannot Be Removed For Non-Usage

The Act provides exceptions to the rule of removal of a trademark on the grounds of non-use of the trademark. The Registrar will not remove the trademark from the Register even when there is non-usage of a trademark in the following three situations: 

  • The proprietor has obtained trademark registration but plans to use it after forming a company under the Companies Act, 2013. Thus, non-use of the trademark while waiting to get the company registration and planning to use the trademark for that company will not result in its removal on the ground of non-use.
  • The proprietor of the trademark intends it to be used by another person. Therefore, when the proprietor is waiting for the trademark to get registered in the name of that other person, the trademark will not be removed on the grounds of non-use.
  • When the non-usage of a trademark is due to any special situation prevailing and not due to the proprietors’ mistake, the Registrar will not remove the trademark on the grounds of its non-use. 

An example of special situations which prevent the removal of a trademark on the grounds of non-use is when the proprietor cannot use the trademark due to restrictions forced by any law. Similarly, when companies are waiting for domestic or international approvals for transport or sale of their goods, the Registrar will not remove the trademark on the grounds of non-use of the trademark. 

Disclaimer: The materials provided herein are solely for information purposes. No attorney-client relationship is created when you access or use the site or the materials. The information presented on this site does not constitute legal or professional advice and should not be relied upon for such purposes or used as a substitute for legal advice from an attorney licensed in your state.

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