Removal of a Registered trademark from the Register of Trademarks | IP Attorney in Delhi NCR | IP Lawyer in Delhi NCR |
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A trademark is a symbol that can be used to differentiate one’s product or service from that of another. Since we associate icons and colours with a certain company or product, it is important for that product’s distinguishable identity to be protected from someone else who may choose to use it. A trademark preserves one’s intellectual property rights, or in other words, one’s distinguishable identity. When a trademark is registered, it is protected for ten years from the date of registration. After ten years, the trademark may be renewed for another ten years. In India it is not mandatory to register one’s trademark as there is remedy of passing off available. But it is generally advised to people to get their trademark registered as it acts a conclusive proof in the Court of law and prevents the third parties in using one’s mark.
Can a Registered Trademark be removed from the Register of Trademarks?
As previously stated, a registered trademark is valid for ten years and can be renewed for another ten years, making the trademark permanent. The only exception to this is that the Registry can eliminate the trademark due to any legitimate reasons. A registered trademark can be removed from the register of trademarks in case of the following things:
- Non-Renewal of a Registered Trademark: In the first case where there is non-renewal it basically means that one’s registered trademark has exhausted the ten years of protection given under the statute. If one don’t renew then one’s trademark as per Section 25 of the Act, then that would be considered unregistered. Also before the proprietor’s period of protection expires, it is mandatory for the proprietor to give the proprietor a note. If the renewal application and fees are not filed after the notice is served, the Registrar may delete the mark from the registry as mentioned under Section 25(3) and it should be noted that the failure to renew would not only weaken the proprietor’s status, but it will also have an effect on the mark’s license holders. The Court stated the above in the case of Kleenage Products Pvt ltd. v The Registrar of Trademarks & Ors (Writ Petition No. 850 of 2015) that removing a registered mark from the register without complying with the necessary provisions of Section 25(3) of the aforementioned Act read with Rule 67 of the aforementioned Rules would be laconic and illegal in and of itself.
- Non-Usage of a Registered Trademark: Under Section 47 of the Trademark Act of 1999, it has been made very clear if a registered trademark is not for five years from the date of registration and three months prior application filing then one’s registered trademark is removed. The Court stated in the case of Kabushiki Kaisha Toshiba v. TOSIBA Appliancest (3639 OF 2008) it was held that the intention to use a trade mark sought for registration must be true and actual. Furthermore, registering a trade mark confers a precious right to the proprietor. Moreover, it aims to differentiate between products produced by one individual and those produced by another. As a result, if a person does not want to use the trade mark in good faith, he or she is not required to register his or her product in order to prohibit anyone from doing so. As it is against the public interest and will lead to unfair competition in the market.
- Removal due to the Error on part of the Trademark Registry: Any mistake or flaw in any entry in the Trademarks Register, as well as any entry incorrectly included in the Trademarks Register, would result in the trademark’s registration being revoked. Registrar defaults will result in significant losses, and the Registrar is responsible. The mark’s registration is revoked in order to help prevent issues with the mark.
It is advised that proper steps must be taken, such as prompt renewal, ensuring that the mark is distinctive even after registration, ensuring use for at least five years after registration are necessary and inevitable. The entire process and the provisions duly apply for the company logo registration, to register your brand and for trademark and logo registration respectively.
Authored By: Adv. Anant Sharma & Swayamsiddha Das