Did you notice that someone else has wrongly registered your trademark? We help you in making an application for cancellation of such a mark. Note that the rectification can be filed within five years of registration of an impugned trademark.
We offer world-class & reasonably priced Trademark Services through the best of attorneys on our panel.
Drafting of petition to the Trademark Registrar and online filing of the same
Did you notice that someone else has dishonestly registered a trademark similar to yours? There is a legal way to challenge such a dishonest trademark registration under the Trademark Act by making a Trademark Rectification application to the registrar of trademarks. We help you draft the trademark rectification petition and file it with the Registrar of Trademarks.
The setindiabiz could help you manage and monitor your trademark to identify potential infringement. We will provide the trademark experts associated with us to assess your claim and who, on your instructions, will take further steps whatever is required in your matter.
Sections 47 and 57 of the trademark provide for the rectification and removal of a trademark that the office of the trademark registrar inadvertently registers. The grounds for removal of the registered trademark through the process of rectification would be cases where the trademark is not put to use after the granting of registration or cases where the trademark is obtained by fraud, misrepresentation or any other dishonest representation. Under the trademark act, the registrar or trademark is empowered to remove, rectify or limit the scope of the trademark on an application seeking trademark rectification in a just and fair case.
The legal framework for Trademark Rectification provides for the cancellation, registration, or removal of trademarks from the register of trademarks. It also provides for the correction of minor errors or typographical errors. The following are the grounds on which a trademark rectification application may be filed.
A registered trademark could be removed on the grounds of non-use coupled with a lack of bonafide intention to use or due to non-use for a continuous period of five years.
Typological errors in the name and address of the registered proprietor and in the description of goods and services can be corrected.
Alteration in the registered mark is allowed to the extent it does not alter the essential character of the mark itself.
The registration of the mark may be cancelled or varied if it is granted by mistake or obtained by fraud or misrepresentation.
As the key to a successful challenge is the quality of the Rectification Petition, it is essential to collect all possible evidence of prior use or other material to establish your bona fide claim on the trademark and share maximum material with your attorney, which will help in Drafting the petition.
The rectification petition or the application must be drafted diligently, representing the applicant’s interest in it and setting out the grounds of cancellation/removal/ correction with proper documentary evidence pointing out the details of incorrect entry and the nature of the error or defect to rectify/remove.
Once an error, omission or defect in registration is identified, the aggrieved party must take immediate steps to redress the issue, as a delay in it may affect the outcome and overall integrity of the Register of Trademark. Consult an experienced trademark attorney to assess your claim, provide the required evidence and facts to ensure correct documentation and maintain clear records. The ideal steps could be as follows:
Evaluate the option for issuing cease and desist notice to stop unauthorised use. Often the issue could be resolved through these notices prior to taking legal action as it provides an opportunity to the offending party to comply voluntarily . Further to this, it is a valid proof the aggrieved party took steps to redress the issue before resorting to legal action.
After expiry of the timeline of cease and desist notice, file the rectification as early as you can. If advised by the attorney on the assessment of your claim, file the rectification and follow the process detailed above. In Practice, the grounds of non-use under Section 47 and the rectification under Section 57 may be invoked together.
