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Rectification is a legal way to address or fix an error or omission made after a trademark registration is completed and recorded in the trademark register. The trademark may have been incorrectly registered or is still active on the register even after expiration. The Indian Trademark Act provides the remedy to file for rectification in such circumstances.
The right to rectification is managed in India under Chapter VII of the Trade Mark Act of 1999. According to Section 57 of the Trademark Act of 1999, anyone bothered by such an entry in the Register of Trademarks may apply for rectification. Rectification is only sometimes practical; sometimes, a mistake can cancel the trademark registration.
What is trademark rectification?
A trademark rectification is an alteration, change, modification, or rectification made by the offended party in any registered trademark or the Register of Trademarks. After a trademark has been registered, there is a legal process to correct or rectify any mistakes or omissions made in the brand’s details as recorded in the trademark register. It’s possible that a mark was improperly registered or remained on the register even after it expired. The Indian Trademark Act allows for the filing of rectification of the registered trademarks in such circumstances.
Suppose a person ignores a situation where the trademark was already registered in the trademark register or a mistake in the trademark registration. In that case, a person may apply for trademark rectification or cancellation. Because the trademark has not been used for a predetermined period after registration, a request for trademark cancellation or rectification may also be made.
Who can file for trademark rectification?
- The trademark owner can file a trademark rectification application to correct a specific error.
- Anyone offended by this entry may apply for trademark rectification.
If an applicant wants to strike another person’s or organization’s registered trademark from the trademark register, they must provide the Registrar with solid evidence to support their request.
Grounds for trademark rectification
- Similar to an earlier mark registration, the registration was made without good reason or by misrepresenting the truth.
- The mark was incorrectly kept on the register even though it might violate the Act’s legal requirements or likely to lead to confusion.
- Making any alterations, additions, or modifications about any registered trademark in light of recent developments.
- The registered proprietor not using any registered trademarks for more than five years.
- The trademark’s prior or original registration is not being renewed.
- A trademark registration might be removed from the register if it was obtained fraudulently. A registration is considered to have been obtained fraudulently if a material fact was concealed or a false statement was made to accept it.
- The omission or addition of a few additional classes of goods or services if doing so would go against the registered trademark’s intended use in commerce.
- Failure to comply with one or more of the grounds listed in Sections 9 and 11 of the Indian Trade Marks Act of 1999
- Even if the Trademarks Registrar is endorsed to hear rectification petitions against registered marks, the authority to listen to an application for Trademark Rectification vests solely with the Intellectual Property Appellate Board (IPAB) and not with the Trademark Registrar if a Trademark Infringement suit is ongoing before a civil court and the accuser in the case is challenging the validity of the accuser’s trademark.
Trademark rectification procedure
The procedure for trademark rectification is the same whether it is proprietor or Registrar initiated. The steps are as follows:
Step 1: Writing the application’s draft
After that, the applicant must complete the application form. The same trademark registry where the relevant trademark registration was filed must receive a rectification request.
Step 2: Submitting the application and supporting documents
The owner must submit the appropriate application, the necessary alterations, and any supporting documentation (such as identity or address proofs), as necessary and by the essential alterations, along with the required fees.
Step 3: Registrar examination
Once a trademark application is submitted, the trademark registrar reviews it, checks for contravened conditions or registration errors, and requests that the application be corrected.
Step 4: Government approval
The Registrar’s approval is required before any necessary changes can be made to the register. When an individual initiates a cancellation or rectification, the following steps must be taken: the individual must apply in the relevant Form, as mentioned above, along with the justification for the rectification, and submit the Form to the Trademark Registrar along with the applicable fees. A notice to file a counter statement will then be sent to the trademark owned by the trademark registrar.
They must file affidavits containing each party’s supporting evidence. The Trademark Registrar or the Board may add, modify, cancel, or remove the entry following consideration of the arguments made by both parties in the case for rectification. Under the Trademark Act and Rules, the applicant and the wronged party can seek cancellation or rectification.
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