Petition for Rectification of the Register of Trade Marks

BEFORE THE REGISTRAR OF TRADE MARKS PETITION FOR RECTIFICATION OF THE REGISTER UNDER SECTIONS 47 AND 57 OF THE TRADE MARKS ACT, 1999 Impugned registration no. : [registration_number] Mark : [impugned_mark] Class(es) : [classes] Registered proprietor : [registered_proprietor] [applicant_name] [applicant_address] ... APPLICANT MOST RESPECTFULLY SHOWETH: 1. THE APPLICANT'S INTEREST [applicant_interest] 2. That the Applicant is accordingly a PERSON AGGRIEVED within the meaning of the Act, and is competent to maintain this petition. 3. GROUNDS FOR RECTIFICATION [grounds] 4. That the entry complained of is an entry made in the register without sufficient cause, or wrongly remaining on the register, or contains an error or defect, and ought to be cancelled, expunged or varied under Section 57 of the Act. 5. That, further and in the alternative, the impugned mark is liable to be removed under Section 47 on the ground of non-use, no bona fide use of the mark in relation to the goods or services in question having been made by the proprietor for the continuous period prescribed by the Act. 6. That it is in the public interest that the register should be a true record, and that marks which ought not to remain on it should be removed, so that the register does not obstruct honest traders. PRAYER It is therefore most respectfully prayed that this Hon'ble Authority may be pleased to: (a) Cancel or expunge registration no. [registration_number] from the register, or in the alternative vary or correct the entry; (b) Award the Applicant the costs of this petition; and (c) Pass such other orders as may be just. Place: ______________ Date: [petition_date] [applicant_name] Through [agent_name] AGENT / ADVOCATE ──────────────────────────────────────────────────────────────── YOU MUST BE A "PERSON AGGRIEVED" — AND THAT IS A REAL THRESHOLD Rectification is not open to anyone with an opinion about the register. You must show that the impugned mark actually affects you: that it blocks your own application, that you trade in the same goods, that you have been threatened with infringement, or that your business is otherwise hindered by its presence. Say what that interest is, specifically, at the start. A petition that does not establish it can fail without the merits being reached. THE TWO ROUTES ARE DIFFERENT, AND IT IS WORTH PLEADING BOTH: SECTION 57 — the entry was made without sufficient cause, wrongly remains, or contains an error. This covers marks that should never have been registered: not distinctive, deceptively similar to an earlier mark, registered in bad faith, or obtained by misrepresentation. SECTION 47 — NON-USE. Where the proprietor has made no bona fide use of the mark in relation to the registered goods or services for the continuous period the Act prescribes, it may be removed. This is the route against a mark registered defensively and never used, which is a common obstruction. EVIDENCE IS WHAT DECIDES THESE. For non-use, evidence that the mark does not appear in the market — searches, trade enquiries, absence from the proprietor's own catalogues and website. For a Section 57 ground, evidence of your own prior use, or of the proprietor's knowledge of your mark when they applied. EXPECT A COUNTERATTACK. A rectification petition frequently produces an infringement or opposition action in reply. Consider your own position — your use, your registrations, your evidence — before starting. WHERE AN INFRINGEMENT SUIT IS ALREADY PENDING and the validity of the registration is put in issue there, the procedural position differs. Take advice rather than filing both blind.