A trademark is a unique symbol or mark that distinguishes one product from the other. For ease of understanding, it can be compared to a birthmark that is unique to a person. To ensure that the trademark is unique and exclusive, the proprietor must register it as per the conditions laid down by Trademark Act and Rules.
1. When Can a Trademark be Rectified?
While applying for the trademark or post it’s registration, if the applicant of the trademark realizes that there have been minor errors or if some alterations are required then the applicant can file for rectification with the Registrar.
2. What Action Can be Taken Against a Trademark That is Wrongly Registered or Wrongly Remaining in the Register?
In case of the trademark being wrongly registered or wrongly remaining in the register, the Act allows rectification. Any person aggrieved by the trademark can apply for rectification or cancellation of the trademark.
An aggrieved person implies a person whose trading interests are affected by the presence of the entry in the register.
3. What are the Grounds for 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.
4. How to Apply for Rectification?
The process for application for rectification can be divided into three categories:
- Rectification or cancellation initiated by the proprietor of the trademark – Apply in the form “TM-16” along with prescribed fees.
- Rectification or cancellation initiated by the registrar – Form “TM- M” along with prescribed fees.
- Rectification or cancellation initiated by any aggrieved person – Form “TM-26” along with prescribed fees.
5. Where Can the Rectification or Cancellation be Filed
The application can be filed in the prescribed manner before the Trademark Registry where the original application was filed or at the Appellate Board, and the Tribunal may order the action of rectifying or cancelling the trademark, as it deems fit.
6. Process of Trademark Rectification
The process of trademark rectification in case of proprietor initiated and registrar initiated remains the same.
The following are the steps:
- Submission of documents: The proprietor must submit the relevant application(s) along with the alterations required and relevant documents (depending on the alterations required)for supporting the alterations like identity proofs or address proofs.
- 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.
The effect of rectification can be that after hearing the case presented by both parties, the Registrar or the Appellate Board can either cancel, vary, add or remove the entry. Trademark Act and Rules provide relief both to the applicant and aggrieved person to seek rectification or cancellation of the trademark.
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