How to Remove The Trademark From The Register?
If a trade mark is been wrongly registered or is wrongly remaining in the Indian Trademark Registry, then the Indian Trademark Act provides the aggrieved party to file a petition for the rectification or the trademark removal. For rectification of a register an application should be filed before the Trademark registry, where the application for the registration have to be filed or at the appellate board. Trademark removal of registered trademark from the register Clauses (a) and(b) of section 46(1) of Trade and Merchandise Marks Act,1958(corresponding to section 47 of the Trade marks Act,1999)are disjunctive and not cumulative.Recourse for trademark removal of registered one from the register may be taken to both of them or either of them. A combined application by person aggrieved under sections 46 and 56 of the 1958 Act(Corresponding to sections 47 and 57 of the 1999 Act)is permissible. Trademark Removal from Register :Parties to Application Application for trademark removal of registered mark from the register under section 46(1)(b) of the Trade and Merchandise Marks Act,1958(corresponding to section 47 of the Trade Mark Act,1999).On the ground the non-user for a period of more than five years was required to be made by impleading the both original registrants and assignee as parties. Removal from register and imposition of Limitation:Non-use Applicants have sought to make a case of non-use of the trade mark and the registered priorities have sought to explain the non-use of the trademark on account of opposition proceedings and the present rectification proceedings. The registered proprietors lacked intention to use the mark and they have not used the mark at all although they have reasonable business opportunities to do so. Mere assertion that the petitioners have intention to use the same trade mark would not give rise to the cause of action so as to maintain the petition by calling themselves as aggrieved. Except the assertion of intention in the affidavit. There is no material whatsoever that the petitioners are substantially interested in having the trademark removal from the regis A registered trade mark may be taken off if not used for a period of five years and one month.Period of unauthorized use of trademark cannot be taken into consideration.Joint registered proprietors of trade mark were carrying on business prior to the formation of the firm.The trademark was used by the firm which was subsequently taken over by a company. It was permitted to use the trade mark belonging to the joint proprietors. On the expiry of five years and one month from the date of expiry of the agreement ,it cannot be held at the joint proprietors have all their rights in the trade mark .A petition was filed for rectification of the register or for the trademark removal. Rectification of register of trademark A petition for rectification of trademark was returned for want of territorial jurisdiction.The petitioner field it before the Intellectual property appellate board on the same day.The appellate Board dismissed the petition on the ground of delay of 10 years. Registered users-(1)Subject to provisions of section 49,a person other than the registered proprietor of a trademark may be registered as a registered users thereof the respect of any or all of the goods or services in respect of which the trade mark is registered. The permitted use of a trade mark shall be deemed not to be used by a person other than the proprietor,for the purpose of section 47 or for any other purpose for which such use is material under this act or any other law.