Trademark rectification
Starting from Rs. 3500/-
A trademark may be a unique symbol or mark that distinguishes one product from the other . For simple understanding, it are often compared to a birthmark that’s unique to an individual. to make sure that the trademark is exclusive and exclusive, the proprietor must register it as per the conditions laid down by Trademark Act and Rules.
Overview
Trademark Registration Process : Examination / Objection
After examination of trademark application, the registrar will decide whether the appliance is often accepted or not. If nor accepted, the registrar will mark the appliance as objected with specific reasons. The examination reports are going to be communicated to applicant or trademark agent for submitting a reply to examination report or registrar.
What are the Grounds for Rectification?
*The grounds for rectification are often classified as follows:
* Error within the form just like the wrong address or contact details.
*Error within the details of the trademark like class, description, classification, and style .
*Error within the details entered within the register.
*Modifying details within the application like the change of applicant and alter 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 are often instances where the registrar orders for rectification on learning of some errors.
*Registrar also can order for rectification when an aggrieved person makes an application for rectification or removal.
What Action are often Taken Against a Trademark that's Wrongly Registered or Wrongly Remaining within the Register?
In case of the trademark being wrongly registered or wrongly remaining within the register, the Act allows rectification. a person aggrieved by the trademark can apply for rectification or cancellation of the trademark. An aggrieved person implies an individual whose trading interests are suffering from the presence of the entry within the register.
How to Apply for Rectification?
The process for application for rectification is often divided into three categories:
- Rectification in application or cancellation initiated by the Registrar of the trademark department Apply within the form “TM-16” along side with prescribed fees.
- Rectification in application or cancellation initiated by the registrar Form “TM- M” along side with prescribed fees.
- Rectification in application or cancellation initiated by any aggrieved person form “TM-26” along side with prescribed fees.
Where Can the Rectification or Cancellation be Filed
The application is often filed within the prescribed manner before the Trademark Registry where the first application was filed or at the Appellate Board, and therefore the Tribunal may order the action of rectifying in trademark application or cancelling the trademark, because it deems fit.
Trademark Examination Report
After examination of the appliance , the registry makes an examination report of application and can decide whether the appliance are often accepted or not. if Trademark application get accepted, the registry moved application forward to advertise the Brand in trademark journal. just in case if the examination report contains any observations, an equivalent are going to be communicated to the applicant or trademark agent for submitting a reply to the examination report.
Trademark examination report shall contain the rationale for objection. The applicant or trademark agent are required to file his trademark objection reply in 30 days from the date of examination report. Generally, this examination report are going to be communicated to the trademark agent for action.
Thereafter, the applicant are going to be directed to file a reply to the objection within 30 days of the examination report. If the reply to the examination report found satisfactory, the Registrar shall proceed to simply accept the appliance and can advertise an equivalent on Trademark Journal.
Reasons for Objections
The following are the main reasons marking the appliance as objected by the Registrar if Trademark:
# If the trademark doesn’t have distinctive character or unable of distinguishing the products or services.
# If the trademark applied for registration is analogous to the marks already registered/applied.
Reasons for Objections - Explained
The grounds of refusal of TM application are often divided into two parts:
Absolute grounds of refusal :
Section 9 (1) to section (3) of Trade Marks Act, 1999
Section 9(1) prohibits the registration of these trademarks:
which are barren of any distinctive character, that’s to mention , unable of distinguishing the products or services of 1 person from those of another person;
which consist exclusively of marks or indications which can serve in trade to designate the type , quality, quantity, intended purpose, values, geographical origin or the time of production of the products or rendering of the service or other characteristics of the products or services; or
which consist exclusively of brand marks or indications which became customary with in current language or within bona fide and established practice of trade.
Section 9 (2) states that mark shall not be registered as a trademark if in case
it’s of such nature on deceive the general public or cause confusion;
Mark contains or comprises of any matter likely to harm the religious susceptibilities of any class or section of the citizens of India;
Brand comprises or contains scandalous or obscene matter;
Mark use is prohibited under the Emblems and Brand Names (Prevention of Improper Use) Act, 1950.
Section 9(3) A mark shall not be registered as a trademark if it consists exclusively of
the form of products which ends up from the character of the products themselves; or
the form of products which is important to get a technical result; or
the form which provides substantial value to the products . Explanation.— For the needs of this section, the character of products or services in reference to which the trademark is employed or proposed to be used shall not be a ground for refusal of registration.
Documents Checklist
Documents Required for Trademark Rectification
A formal reply to the examination report is required to be submitted with sold clarifications and evidences on why the the appliance is to be accepted. Following are the documents required.
Power of Attorney
Reply to Examination Report
Documentary proof of Trademark in commercial use which incorporates invoices, letterheads and communications, visiting cards, screenshots of internet sites , brochures, financial statements and every one other evidences where trademark is getting used
Trademark Objection Reply – Requirements
➼ Reply with in 30 Days
Applicant has got to file reply to an equivalent within 30 days of the objection. just in case the reply isn’t filed within 30 days of report, the appliance are going to be declared as abandoned.
➼ Extension of your time for Reply beyond 30 days
Applicant can file application for extension of your time for filing reply in Form TM-M with requisite (₹900.00).
Process of Trademark Rectification
The process of trademark rectification just in case of proprietor the registrar of trademark department initiated and registrar initiated remains an equivalent. the subsequent are the steps:
A. Submission of documents:
The proprietor must submit the relevant application(s) along side the alterations required and relevant documents (depending on the alterations required)for supporting the alterations like identity proofs or address proofs.
B. Drafting of the application:
The applicant then must fill the relevant form with all the small print .
C. Filing of the shape :
subsequent step is to file the form with the Registrar along side the prescribed fees.
D. Approval of government:
The last step is approval by the Registrar and modification within the register as needed . When the rectification is initiated by an aggrieved person, then the method is: – The aggrieved person must apply within the relevant form (as began above) along side the rationale for rectification and submit Application it to the Registrar of trademark with prescribed fees. Then the Registrar of trademark department will send notice to the proprietor of the trademark to file a counter statement. Both parties will need to file affidavits producing their evidence. The effect of rectification are often 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 hunt rectification or cancellation of the trademark.
F. Authorized Capital.
How to file reply to Trademark Objection
➼ Trademark Objection Response
When the registrar is of the opinion that the appliance is responsible for objection, the status of the appliance is modified to OBJECTED
➼ Analyse the examination report
First step is to analyse the examination report and to work out the rationale for the objection raised.
➼ Draft reply to Objection
Next step is to organize an objection reply mentioning proper answer to the objection raised with supporting rule of law and judgments supporting the case, along side other supporting documents and evidence that validates the response.
➼ Timelines for reply
The reply to objection has got to filed within 30 days of the examination report with supporting documents.
➼ If the Reply is accepted:
If the response is accepted, the appliance are going to be processed further for registration and advertisement within the Trademark Journal.
➼ If it’s not accepted,
If it’s not accepted, the registry will mark the matter for hearing and date / time wll be notified to the Trademark Agent.
