A registered trademark is not untouchable. If it has sat unused, it can be struck off the register — because registration protects those who use a mark, not those who merely hoard it. That remedy is rectification for non-use under Section 47.
The two grounds under Section 47
Section 47 of the Trade Marks Act, 1999 allows removal in two situations:
- No bona fide intention to use. The mark was registered without a genuine intention to use it — for example, defensive registrations across all 45 classes when only one or two are actually used. Courts discourage this.
- Non-use. The mark has not been used for a continuous period of five years from registration, extending to three months before the rectification application — effectively five years and three months.
Who can file
Any “aggrieved person” may apply. The Act does not define it, but courts read it to include anyone substantially interested in removing the mark or substantially prejudiced by its continued registration — typically:
- someone who believes they are damaged by the registration;
- the owner of an earlier pending or registered mark for the same mark; or
- a person who would be substantially prejudiced if the mark stayed on the register.
Anonymous filing is not allowed — applicants must show they are affected and put forward evidence of non-use. This stops random third parties from stripping valid marks off the register.
What “use” means (and the burden)
“Use” is read widely: the printed or visual representation of the mark in relation to goods or services — not necessarily physical sales. Advertising or a TV commercial can count as use even without goods manufactured.
The applicant generally bears the burden of proving non-use, but the onus can shift to the owner at the hearing to establish use. In an IPAB matter, an owner’s reliance on foreign registrations as evidence of use was rejected as insufficient, and the mark was removed.
Procedure and effect
- File before the appropriate forum (historically the Registrar or the IPAB; note the IPAB was abolished in 2021, with its work moved to the High Courts), with the prescribed form, fee and a statement of case setting out interest, facts and relief.
- If the owner cannot show genuine use, the mark is removed from the register.
Practical guidance
- Keep and dated-evidence your use — invoices, advertising, media — so you can defend a non-use attack.
- Consider filing use affidavits at renewal or every five years to maintain the integrity of your registration.
- Do not over-file defensively across classes you will not use; it invites rectification.
Frequently asked questions
When can a trademark be removed for non-use in India? When it has not been used for a continuous period of five years, extending to three months before the rectification application — five years and three months in total.
Who can apply for rectification? Any “aggrieved person” — broadly, someone substantially interested in, or prejudiced by, the registration. Anonymous filing is not permitted.
Does “use” require actual sales? No. Advertising or promotion of the mark can amount to use even without goods manufactured.
Who bears the burden of proof? Usually the applicant proves non-use, but the onus can shift to the owner to establish genuine use at the hearing.
Useful official resources
- The Trade Marks Act, 1999
- IP India public trademark search