Cancellation & Rectification of Trademarks in India

Even registered trademarks aren’t invincible. Both cancellation and rectification provide legal routes for aggrieved parties to challenge or correct entries in the Indian Trademark Register, under privileges granted by Sections 47 and 57 of the Trade Marks Act, 1999.

1. Cancellation on Grounds of Non-Use (Section 47)

A trademark may face cancellation if:

• No genuine intention to use it after registration—or

• It hasn’t been used continuously for a full five years, plus an extra three months, before a cancellation request is filed.

In either case, any person affected by the mark’s presence in the register can request cancellation.

2. Rectification of the Register (Section 57)

Rectification addresses broader issues—correcting or removing entries that are:

• Made without valid cause (e.g., registered by fraud or misrepresentation),

• Wrongly remaining due to errors,

• Missing required disclaimers, conditions, or containing misclassifications,

• Wrongfully contravening legal provisions (like causing public confusion or violating prior rights),

• In need of updating due to clerical mistakes.

It empowers the Registrar—or now judicial bodies after IPAB’s dissolution—to amend the register following due notice and hearing.

3. How the Process Works

Anyone can initiate cancellation or rectification using Form TM‑O, submitting it to the appropriate Trademark Registry. The application must include:

• Facts justifying the request,

• The applicant’s connection to the case, and

• The specific relief desired.

Once the Registrar accepts it, the mark’s owner must file a counter-statement (within the prescribed timeframe), followed by evidence, possibly a hearing, and finally, a decision.

4. Legal Interplay: Sections 47, 57, and 124

• Section 47: Focuses on removal due to non-use or lack of genuine intent.

• Section 57: Covers registration errors, unjust entries, or non-compliance.

• Section 124: Acts as a safeguard: if trademark validity is raised during litigation, rectification/cancellation proceedings are suspended unless courts direct otherwise.

Notably, courts have emphasized that failure to raise invalidity during litigation may waive the right for rectification later.

5. Why It Matters

• Marks that aren’t used or are wrongly entered dilute brand clarity and clutter the register.

• These procedures keep the system fair—not just for owners, but for anybody affected by a mark’s improper presence.

• Businesses should monitor use and registrations carefully to avoid challenges and maintain legal strength.