If a trademark has been wrongly entered on the Register, or is wrongly remaining on it, an aggrieved person can apply to have it removed or corrected. This is rectification.
It is the main route available once a mark has already been registered and the window for opposition has closed.
Who can apply
Any person aggrieved by an entry wrongly made or wrongly remaining on the Register.
“Aggrieved person” is read reasonably widely. A trader whose own application has been cited against them, or who is blocked from using a mark in their field, will normally qualify. Idle curiosity will not.
Grounds under Section 47: non-use
Section 47 of the Trade Marks Act sets out two non-use scenarios.
No bona fide intention to use
Where it is proved that the mark was registered without any genuine intention of using it.
This comes up regularly in searches conducted before filing, where you find marks registered across all 45 classes although the owner actually trades in one or two. This is defensive registration, and courts have repeatedly held it should not be encouraged.
If you can show the owner had no real intention of using the mark for the goods or services claimed, a cancellation petition can be filed to remove it.
Five years of non-use
Where the mark has not been used for a continuous period of five years from the date of registration, plus the three months preceding the application for rectification.
In effect, five years and three months of non-use opens the door for any aggrieved person to seek removal.
Note what this does and does not require. Some initial use does not save the registration. If the mark then goes unused for a continuous five-year period after registration, rectification is available.
Other grounds
Rectification is not limited to non-use. An application can also be filed where:
- The mark was wrongly registered, for example in the face of an earlier conflicting right or where it should have been refused on absolute grounds.
- The entry remains on the Register wrongly, including after expiry.
- There is an error or defect in an entry that needs correcting.
Why this matters when you are filing
Rectification is often the answer to a problem rather than an attack on someone else.
If your application has been objected to on the basis of a cited earlier mark, and that earlier mark is not actually in use, a rectification action against it can clear the path. It is slower than arguing distinctiveness, but where the citation is a genuinely dead mark it is frequently the more reliable route.
Which is also why a proper clearance search is worth doing before you file. Knowing whether a blocking mark is live or dormant changes your strategy entirely.
The other side of it
The same rules apply to your own portfolio.
Registering across classes you do not trade in feels like broad protection. It creates registrations that are vulnerable to exactly this challenge, and the vulnerability tends to surface at the worst moment, when you are trying to enforce.
Register where you trade and where you have a real plan to trade. Renewal alone does not immunise an unused mark.
Frequently asked questions
What is the difference between opposition and rectification? Opposition challenges an application before it registers, within four months of advertisement. Rectification challenges a mark that is already on the Register. Different timing, different forum, different form.
How long does rectification take? It is a contested proceeding with evidence stages, so realistically a matter of years rather than months, depending on the Registry’s backlog and whether the matter is defended.
Can the owner defend by showing recent use? The five-year period is a continuous period of non-use. Use resumed shortly before the application is filed does not necessarily cure it, which is why the three-month lead-in exists.
Do I need to own a trademark to file for rectification? No, but you do need to be an aggrieved person. Being blocked by the mark in your own field is the usual basis.
Where do appeals go? To the High Court. The Intellectual Property Appellate Board was abolished by the Tribunals Reforms Act, 2021 and its functions transferred to the High Courts.
Useful official resources
- IP India public search — to check the status and history of a mark
- IP India e-filing portal
- Trade Marks Act, 1999 — Section 47 and following
Blocked by a mark that looks dormant? Talk to us and we will tell you whether rectification is worth the time before you commit to it.