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What is Trademark Rectification?
Rectification is the legal proceedings to correct a mistake or an error that has been made in the Trademark Register, after a Trademark is Registered. A registered Trademark can be removed from the following two reasons:
If a trademark was registered without any bona fide intention on part of the registered Proprietor.
If the trademark is not been used for a continuous period of 5 years from the date of registration.
On above reasons a registered TM can be removed by way of Rectification Petition.
Who can file Rectification Petition
The rectification petition can be filed by a person who is aggrieved by a registered Trademark.
A rectification petition can also be filed by a Registered Trademark holder himself, if it has been filed erroneously.
Grounds for Rectification
- Non-Use for 5 years.
- A mark which causes confusion because of existing similar mark.
- Registration was made by misrepresentation of facts.
- Non-renewal of the original or previous registration of the trademark.
- A trademark could be expunged from the register in case registration is obtained by fraud.
How to deal a rectification petition filed against your Registered Trademark
If your Registered Trademark faces a Rectification stage, we need to be very consciously handle the process with at most care and concern.
Time: If a Rectification Petition is filed against our Registered Trademark, the Trademark Registry will communicate the same to us. We need to file our side reply within a period of 60 days. We cannot request for any time extension.
Our side reply: We need to draft a detailed reply which shall comprise of the history of our company, such as the year of establishment of business, annual turnover and other Information. If the subject trademark id different from that of company name, the information and details of the Trademark should also be stated. Further the grounds of opposition need to be countered properly.
For example, if a rectification is filed on ground of Similarity, then our side replies may be:
- Comparing the goods or service of both the parties
- Prior user
Evidence: Once we submit our side counter statement, the applicant in the rectification petition will file the evidences in support of his grounds. Once we receive the evidences, we need to submit our side evidences by way of affidavit.
Hearing: The registry shall fix up the time for hearing and on the specific day, both the parties or through their attorneys, can argue their side merits and the Registry shall pass the order based on evidences.
Where to file Trademark Rectification
A Rectification petition against a Registered Trademark can be applied before the same Trademark Registry where the application was registered. A rectification petition can also be filed before the Intellectual Property Appellate Board.
Trademark Rectification Procedure
If anyone aggrieved by a Registered Trademark of any third party, can file a Rectification petition before IPAB or even before Trademark Registry. The procedure of Rectification process is stared below simply.