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CHAPTER 7 – RECTIFICATION AND CORRECTION OF REGISTER ALTERATION OR RECTIFICATION OF REGISTER

BananaIP Counsels > The Trade Mark Rules > CHAPTER 7 – RECTIFICATION AND CORRECTION OF REGISTER ALTERATION OR RECTIFICATION OF REGISTER

CHAPTER 7 – RECTIFICATION AND CORRECTION OF REGISTER ALTERATION OR RECTIFICATION OF REGISTER

97. Application to rectify or remove a trademark from the register.— 

 

An application to the Registrar under Section 47, 57, 68 or 77 for the making, expunging or varying of any entry relating to a trademark or a collective trademark or certification trademark in the register shall be made in Form TM-O, as the case may be, and shall be accompanied by statement in setting out fully the nature of the applicant’s interest, the facts upon which he bases his case and the relief which he seeks. Where the application is made by a person who is not the registered proprietor of the trademark in question, the application and the statement aforesaid shall be left at the Trade Marks Registry. In case there are registered users, such application and statements shall be accompanied by as many copies thereof as there are registered users. A copy each of the application and statement shall be ordinarily transmitted within one month by the Registrar to the registered proprietor and to each of the registered user and to any other person who appears from the register to have an interest in the trademark. The application shall be verified in the manner prescribed under clause (i) of sub-rule (c) of rule 43 for verification of a notice of opposition.

 

98. Further procedure. — 

 

Within two months from the receipt by a registered proprietor of the copy of the application mentioned in rule 97 or within such further period not exceeding one month in the aggregate, he shall send to the Registrar on Form TM-O a counterstatement of the grounds on which the application is contested and if he does so, the Registrar shall serve a copy of the counter statement on the person making the application within one month of the receipt of the same. In case no counter statement has been filed within the period of three months from the date of receipt of the application mentioned in rule 97, the applicant for rectification shall file evidence in support of his application for rectification under the provisions of rules 45 (1). The provision under rule 46 to 51 shall thereafter apply mutatis mutandis to the further proceedings on the application.

 

99. Intervention by third parties.

 

Any person, other than the registered proprietor, alleging interest in a registered trademark in respect of which an application is made under rule 97 may apply on Form TM-O for leave to intervene, stating the nature of his interest, and the Registrar may refuse or grant such leave after hearing (if so required) the parties concerned, upon such conditions and terms including undertakings or conditions as to security for cost as he may deem fit to impose.

 

 

100. Rectification of the register by the Registrar of his own motion.— 

 

 

(1) The Notice, which the Registrar is required to issue under sub-section (4) of section 57, shall be sent in writing to the registered proprietor, to each registered user, if any, and to any other person who appears from the register to have any interest in the trademark, and shall state the grounds on which the Registrar proposes to rectify the register and shall also specify the time, not being less than one month from the date of such notice, within which an application for a hearing shall be made:

 

Provided that no notice shall be required to be sent to the registered proprietor, in case the registered proprietor has requested or agreed in writing for cancellation of the registration; and thereupon register shall be rectified accordingly.

 

(2)Unless within the time specified in the notice aforesaid, any person so notified sends to the Registrar a statement in writing setting out fully the facts upon which he relies to meet the grounds stated in the notice or applies for a hearing, he may be treated as not desiring to take part in the proceedings and the Registrar may act accordingly.

 

(3)If the Registrar decides to rectify the register he shall communicate his decision in writing to the registered proprietor and to each registered user, if any.

Alteration or Correction in Register

 

101. Alteration of address in register.— 

 

(1) A registered proprietor or a registered user of a trademark, the address of whose principal place of business in India or whose address in his home country as the case may be or address for service in India, is changed so that the entry in the register is rendered incorrect, shall forthwith request the Registrar in Form TM-P to make the appropriate alteration of the address in the register, and the Registrar shall alter the register accordingly if he is satisfied in the matter.

 

(2) A registered proprietor or a registered user of a trademark the address of whose principal place of business in India or whose address for service in India is altered by a public authority, so that the changed address designates the same premises as entered in the register, may make the aforesaid request to the Registrar on Form TM-P or as the case may be, and if he does so he shall leave therewith a certificate of the alteration given by the said authority. If the Registrar is satisfied, as to the facts of the case, he shall alter the register accordingly but shall not require any fees to be paid on the forms, notwithstanding the provisions of sub-rule (2) of rule 10 or sub-rule (2) of rule 11.

 

(3)(i) Where a registered proprietor makes a request under sub-rule (1) or (2), he shall serve a copy of the request on the registered user or users, if any, and inform the Registrar accordingly.

 

(ii) where the request aforesaid is made by a registered user, he shall serve a copy thereof on the registered proprietor and every other registered users, if any, and inform the Registrar that he had done so.

 

(4) In case of the alteration of the address of a person entered in the register as the address for service in India of more than one registered proprietor or registered user of trademarks, the Registrar may, on proof that the said address is the address of the applicant and if satisfied that it is just to do so, accept an application from the person in Form TM-P so as to suit the case, for the appropriate alteration of the entries of his address as the address for service in the several registrations, particulars of which shall be given in the Form and may alter the entries accordingly.

 

(5) All applications under this rule on Form TM-P shall be signed by the registered proprietor or the registered user, as the case may be, or by an agent authorised by him.

 

(6)Where an application has been made under sub-section (1) of section 58 for the alteration of the register by correction, change, cancellation or striking out of goods or services or for the entry of a memorandum, the Registrar may require the applicant to furnish such evidence by affidavit or otherwise as the Registrar may think fit, as to the circumstances in which the application is made. Such application shall be made in Form TM-P and a copy thereof shall be served by the applicant on the registered user or users, if any, under the registration of the trademark in question and to any other person who appears from the register to have an interest in the trademark.

 

102. Alteration of registered trademark.— 

 

Where a person applies under section 59 for leave to add to or alter his registered trademark, he shall make the application in writing in Form TM-P and shall furnish copy of the trademark as it will appear when so added to or altered. A copy of the application and of the trademark so amended or altered shall be served by the applicant on every registered user, if any.

 

103. Advertisement before decision and opposition etc. — 

 

(1) The Registrar shall consider the application made under rule 102 and shall, if it appears to him expedient, publish the application in the Journal before deciding it.

 

(2) Within three months from the date of advertisement under sub-rule (1), any person may give notice of opposition to the application in Form TM-O. A copy of the notice shall be transmitted forthwith by the Registrar to the registered proprietor and each registered user, if any, and within two months from the receipt by the registered proprietor of such copies he shall sent to the Registrar in Form TM-O a counter statement of the grounds on which the opposition is contested. If the registered proprietor sends such a counterstatement, the Registrar shall ordinarily serve a copy thereof on the person giving notice of opposition within one month and the provisions of rules 45 to 51 shall apply mutatis mutandis to the further proceedings on the opposition:

 

Provided that where the registered proprietor fails to file the counter statement within the specified time, the application shall be deemed to have been abandoned.

 

(3) If there is no opposition, within the time specified in sub-rule (2), the Registrar shall, after hearing the applicant if he so desires, allow or refuse the application and shall communicate his decision in writing to the applicant.

 

104. Decision, Advertisement, Notification.— 

 

If the Registrar decides to allow the application he shall alter the trademark in the register accordingly and publish in the Journal a notification that the trademark has been altered along with trademark as altered.

Re-classification of Goods in Respect of Existing Registration

 

105. Re-classification in respect of existing registration.—

 

(1) On the amendment in international classification of goods and services (NICE Classification), the registered proprietor of a trademark may apply to the Registrar in Form TM-Pfor the conversion of the specification of goods and services relating to the trademark, so as to bring that specification into conformity with the amended classification.

 

(2) The Registrar may, thereupon, amend the description of goods and services or the classification as the case may be in accordance with international classification of goods and services (NICE Classification).

 

(3) The amendment in the specification of goods or services or in the classification if approved shall be advertised in the Journal; thereafter the entry in the register in respect of that registration shall be modified accordingly.

 

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