Trademark Rectification — Remove or Cancel a Registered Mark
Trademark rectification is how you get a registered mark removed or corrected: for five years of non-use under Section 47, or because it should not be on the register under Section 57. You apply in Form TM-O before the Registrar, or petition the High Court, which took over from the IPAB in 2021. We build the evidence and run the case.
What it is
Trademark rectification changes the register after a mark has been registered. You use it when a registered mark blocks your own application, when its owner stopped using it long ago, or when it should never have been registered.
Two sections of the Trade Marks Act, 1999 apply. Section 47 lets any person aggrieved apply to remove a mark for non-use. Section 57 lets any person aggrieved apply to cancel, vary or correct an entry. Before the Registrar, both are filed in Form TM-O.
The forum changed in 2021. The Tribunals Reforms Act, 2021, deemed in force from 4 April 2021, abolished the Intellectual Property Appellate Board and put “High Court” in place of “Appellate Board” in Sections 47, 57, 124 and 125.
Who it applies to
Clear an old mark blocking your application
Say a Faridabad kitchenware maker gets a trademark objection citing a 2015 registration whose owner has sold nothing in years. A Section 47 application can clear the way.
Cancel a mark registered ahead of you
Picture a Ballabgarh sweets brand whose former distributor quietly registered its name. Where an entry was made without sufficient cause, say in breach of Section 9 or 11, Section 57 lets you seek cancellation.
Defend your own registration
As the registered proprietor, you must file a counter-statement in Form TM-O within two months of receiving the application. We defend with proof of use.
Why it matters
Clears the path for your filing
Once the cited mark is off the register, the Section 11 objection based on it falls away.
Weakens an infringement threat
If you are sued on a registration that is invalid or unused, rectification attacks the root of the claim.
Keeps dead marks off the register
A registration lasts ten years and can be renewed every ten years. Left alone, an unused mark can block real businesses for decades.
Documents required
To show you are aggrieved
- Your trademark application and the examination report citing the mark
- Legal notice or suit papers, if any
- Proof of your own use: invoices, advertisements, website pages
To prove non-use or invalidity
- Investigator’s report on the proprietor’s trade
- Market, online marketplace and trade-directory searches
- MCA or GST records showing the business closed or changed
- Evidence of your earlier use, if you rely on it
To file the application
- Form TM-O with a statement of case
- Evidence by affidavit
- Authorisation for the agent or advocate who files
Section 47 or Section 57: which applies
| Section 47 (non-use) | Section 57 (rectification) | |
|---|---|---|
| Ground | No bona fide use for a continuous five years from entry on the register; or registered without a bona fide intention to use, and never used | Breach of a condition on the register; an entry made without sufficient cause, wrongly remaining, or with an error or defect |
| Who applies | Any person aggrieved | Any person aggrieved; the Registrar or High Court can also act on its own motion |
| Waiting period | Five years from entry, counted up to three months before you apply | None |
| Result | Mark removed for some or all of its goods or services | Registration cancelled, varied or corrected |
| Owner’s defences | Bona fide use; use on goods of the same description; special circumstances in the trade (Section 47(3)) | The entry was rightly made and rightly remains |
Here is the catch with Section 47: the five years run from the date the mark is actually entered on the register, not the filing date. A mark filed in 2018 but registered in March 2022 after a long opposition cannot be attacked for non-use until June 2027.
Many cases plead both sections together: non-use under Section 47, and wrongful registration under Section 57.
Registrar or High Court: where to file
Sections 47 and 57 allow an application to the Registrar or to the High Court. Before the Registrar, you file Form TM-O at ₹2,700 per class (₹3,000 on paper), and the Trade Marks Rules, 2017 govern evidence and hearings. In the High Court, it is a rectification petition under that court’s rules, signed and argued by a practising advocate.
One situation leaves no choice. Under Section 125, when the validity of a registration is questioned in an infringement suit, the rectification application must go to the High Court and not to the Registrar. Under Section 124, a court that finds the invalidity plea prima facie tenable adjourns the suit for three months so the party can apply to the High Court.
Our rule of thumb is simple. A stand-alone non-use case goes to the Registrar. A case tied to a running suit goes to the High Court.
How it works
Pull the register entry and check your standing
We check the entry date, goods, owner and renewal status, and confirm you are a person aggrieved.
Investigate the owner’s use
We gather market checks, online searches and public records. Sometimes one document settles it. If the owner is a company the ROC struck off years ago, its MCA master data can say more than any affidavit.
File Form TM-O, or brief your advocate
We draft the statement of case and the affidavit. Before the Registrar, we file Form TM-O on the IP India portal; for the High Court, we prepare the papers for your advocate.
Answer the counter-statement and file evidence
The owner has two months to file a counter-statement. In practice, evidence by affidavit then runs the same way as in a trademark opposition.
Argue the hearing
The Registrar gives at least one month’s notice of the hearing and allows no more than two adjournments, each of up to 30 days. Appeals from the Registrar’s orders lie to the High Court under Section 91.
Timelines
Count five years and three months for non-use
Section 47(1)(b) needs five continuous years of non-use from entry on the register, up to three months before you apply.
Reply within two months as the owner
The registered proprietor has two months from receiving a copy of your application, extendable by not more than one month in all. The Registry then serves the counter-statement on you within one month.
Plan two, two and one month for evidence
As in an opposition, each side gets two months for its affidavits and the reply evidence gets one month.
What happens if you do nothing
Stay stuck behind the old mark
Your application stays stuck on the Section 11 citation, and the dead mark can be renewed again and again.
Lose your say as the owner
If you own the mark and miss the counter-statement window, the Registrar has only the applicant’s case and evidence on record.
Lose the validity defence in a suit
If a court adjourns your infringement suit under Section 124 and no rectification is filed within the time, Section 124(3) treats the validity issue as abandoned and the suit goes on.
Frequently asked questions
Who can file a trademark rectification application?
Any person aggrieved, under both Section 47 and Section 57. That means someone the registration affects: a business whose application is blocked by the mark, a trader who has been sent a notice or sued on it, or an earlier user of a similar mark. We set out your interest clearly in the statement of case.
When can I apply to remove a mark for non-use?
Once five continuous years of non-use have passed from the date the mark was entered on the register, counted up to three months before you apply. That is Section 47(1)(b). Section 47(1)(a) is a second route: the mark was registered without a bona fide intention to use it, and there has been no bona fide use up to three months before your application. Check the entry date first; it can differ from the filing date by years.
Should I file before the Registrar or the High Court?
Either is open under Sections 47 and 57, unless the registration’s validity is questioned in an infringement suit. Then Section 125 sends the rectification to the High Court, not the Registrar. A stand-alone non-use case usually goes to the Registrar on Form TM-O, which costs ₹2,700 per class when e-filed. A High Court petition carries court fees under that court’s rules and must be signed by a practising advocate. We advise on the route before anything is filed.
How does the registered owner defend a rectification?
By filing a counter-statement in Form TM-O within two months of receiving the application, with at most one more month. The owner then proves bona fide use with invoices, advertisements and sales records. Section 47 adds two defences: use on goods of the same description, and non-use caused by special circumstances in the trade under Section 47(3). A well-kept file of dated invoices is usually the strongest answer.
What evidence proves non-use?
Evidence that the mark was not used in trade during the relevant five years. Typical proof: an investigator’s report, searches of shops, online marketplaces and trade directories, and public records showing the owner’s business closed. The owner holds the records of use, so a weak reply often speaks for itself. We collect and present this as an affidavit with exhibits.
Can only part of a registration be removed?
Yes. Section 47 removes a mark in respect of the goods or services for which it was not used, so a long list can be cut down to what the owner sells. Section 57 likewise allows the registration to be varied rather than cancelled. For example, a mark registered for all of Class 9 but used only on mobile chargers can be trimmed so it no longer blocks your software.
What happened to the IPAB?
It was abolished. The Tribunals Reforms Act, 2021 (Act 33 of 2021, assented to on 13 August 2021) is deemed in force from 4 April 2021. It omitted the IPAB provisions of the Trade Marks Act and replaced “Appellate Board” with “High Court” in Sections 47, 57, 91, 124 and 125. Work that went to the IPAB, including appeals from the Registrar, now goes to the High Court. The law on grounds is unchanged.
Can I seek rectification while an infringement suit is pending?
Yes, and timing matters. If rectification proceedings are already pending, Section 124 requires the court to stay the suit until they are decided. If none are pending and the court finds your invalidity plea prima facie tenable, it adjourns the case for three months from framing the issue so you can apply to the High Court. Miss that window and Section 124(3) treats the issue as abandoned, so we diarise it the day the issue is framed.
What it costs
Our fee plus the government fee that applies to your case, quoted before you commit. Tell us the situation and we will price it exactly.
| Filing | E-filing | Paper filing |
|---|---|---|
| Form TM-O, application for rectification or removal (per class) | ₹2,700 | ₹3,000 |
| High Court rectification petition | Court fee under that High Court’s rules | — |
Ready to begin?
Send us the registration number blocking you, or the rectification notice you received. We will tell you which section fits and what evidence you need.