How can I get a trademark removed from the register through rectification

Question

A competitor holds a registered trademark that I believe was wrongly granted or has not been used for years, and I want it cancelled. I would like to understand which provision governs this, what it entitles me to, and how long I have before the remedy lapses. I also want to know whether I need a lawyer for this or can do it myself.

MyVakeel Legal Desk · Accepted Answer

In India, the answer to "How can I get a trademark removed from the register through rectification" turns on Trade Marks Act, 1999, Section 47 and Trade Marks Act, 1999, Section 57. The points below set out the position and then what to do about it, in the order it should be done.

Section 47 of the Trade Marks Act, 1999 allows removal of a registered trademark on the ground of non-use, where the mark was registered without a bona fide intention to use it and there has been no use for the goods or services up to three months before the rectification application, or there has been no bona fide use for a continuous period of five years and three months.

Section 57 provides a broader ground for rectification or cancellation, permitting any person aggrieved to apply to the Registrar or, since the abolition of the IPAB in 2021, to the High Court, where an entry was made without sufficient cause, wrongly remains on the register, or where the registration lacks distinctiveness or was obtained through misrepresentation.

Rectification petitions are typically filed as a counter to an infringement suit, since Section 124 requires the civil court to stay the suit if the defendant raises a genuine plea of invalidity and refers the parties to the rectification forum, though post-2021 several High Courts now hear both together under their original side jurisdiction.

Success in a rectification petition depends on documentary proof — or its absence — of continuous commercial use, such as invoices, advertising spend, sales figures and correspondence, since bare assertions of non-use are rarely accepted without corroborating evidence.

In practice, in this order: 1) Gather evidence, or the absence of evidence, of the registrant's actual commercial use; 2) File the rectification petition before the appropriate High Court with supporting documents; 3) Serve notice on the registered proprietor and the Trade Marks Registry; 4) Pursue the petition alongside any pending infringement suit if applicable.

Timing matters here: Trade Marks Act, 1999, Section 47 works on limitation periods, so a trademark rectification claim that is right on the merits can still fail if it is brought late. You can post the details on the MyVakeel forum for a practising advocate to review, or book a paid consultation with a Bar Council verified lawyer in intellectual property.