A trademark is an exclusive right given for a period of 10 years from the date on which the mark was filed and the same can be further renewed in every 10 years. Hence, it would not be wrong in stating that a trademark is for perpetuity, if it is renewed timely. This can give rise to a misconception that only registering the trademark is sufficient. However, this is not the case. It is mandatory for the registered proprietor to commercially exploit the trademark i.e. use the trademark, otherwise any third party can file an application before the Indian Trademark Registry for removal of the trademark.
Trademark Removal in India and Non-Use of the Mark
Can a trade mark be removed in India due to Non-Use or if a trademark is not being used after registration?
Yes, if a registered trademark in India has not been used for a continuous period of five years three months from the date on which the trade mark is actually entered in the register, it can be removed on an application by a third party for rectification or cancellation made in prescribed manner by filing request before Trade Marks Office in India.
Trademark Removal under Trade Marks Act, 1999
As per Section 47(1) of the Trade Marks Ac, 1999 a registered trade mark may be taken off the register in respect of the goods or services in respect of which it is registered on application made in the prescribed manner to the registrar or the appellate Board by any person aggrieved on the ground either—-
(a) that the trade mark was registered without any bona fide intentions on the part of the applicant for registration that it should be used in relation to those goods or service by him or, in a case to which the provisions of section 46 apply, by the company concerned or the registered user, as the case may be and that there has, in fact been no bona fide use of the trade mark in relation to those goods or services by any proprietor thereof for the time being up to a date three months before the date of the application or
(b) that up to a date three months before the date of the applications a continuous period of five years from the date on which the trade mark is actually entered in the register or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods or services by any proprietor thereof for the time being.
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