Post-Registration Trademark Audit in India: The Case for One

India treats use as the foundation of trademark rights — and then never checks it again. Once a mark is registered, no one verifies that it is actually being used, for any of the goods it claims. The result is a register full of marks that exist only on paper, blocking businesses that want to use their brands for real.

How the USPTO audits registrations

Under the USPTO’s Post Registration Audit Program, a declaration of use must be filed between the fifth and sixth year of a registration. A mark may then be selected at random for audit, requiring the owner to produce documents showing continuous proof of use.

The burden sits on the owner to show proper use of the mark for all the goods and services in the relevant classes. Specimens must show current, actual use in commerce, and any webpage screenshot must include the URL and date of access. Where an owner cannot show use across all classes, the programme lets them delete specifications for goods or services no longer offered.

The numbers are the striking part. A USPTO study in July 2019 found that between November 2017 and June 2019, examiners issued over 4,500 first actions, and more than half of the registrations responded by deleting at least some of the goods and services previously claimed. In a country where registration is conditional on proving use in commerce, over half of audited registrations were still overclaiming.

What happens in India

India is a common law, first-to-use jurisdiction. You would expect use to be closely monitored. It isn’t. Use is rarely examined after registration, and there is no system or database for post-registration auditing of trademarks. The Registry does not undertake suo motu cancellation of unused marks, so a mark can in theory stay on the register indefinitely without ever being used in commerce.

The only real corrective is cancellation for non-use, which an aggrieved party may seek where the mark has not been used for a continuous period of five years and three months. These applications are comparatively rare — and they place the entire burden of cleaning the register on private parties willing to fund a contested proceeding.

Where such applications go now. When this was first written, rectification and cancellation lay with the Intellectual Property Appellate Board. The IPAB was abolished in 2021, and those applications now lie before the Registrar or the High Courts. That has made the forum clearer, but it has not made non-use cancellation any more routine.

Why deadwood on the register matters

Claiming a user date and then not continuing to use the mark damages both brands and orderly competition. Applications are filed with user details covering goods and services that were never offered from the claimed date. A non-user should not enjoy a monopoly — otherwise there is ample scope for trafficking in trademarks, and bona fide parties are prevented from protecting their own brands.

The abuse has a recognisable commercial shape. An applicant registers a mark identical or deceptively similar to a famous brand, causing obvious confusion, for the sole purpose of being bought out. Rather than oppose — slow, contested, expensive — the brand owner simply buys the squatter out. The easy alternative rewards the conduct, and the register keeps filling.

What a programme would achieve

Given current technology, verifying that registered marks are in lawful use is well within reach. A post-registration audit programme would:

shrink the backlog at the Trade Marks Registry by clearing unused marks off the register;
produce a more accurate register, which matters most to businesses conducting clearance searches; and
create additional revenue, since the Registry could charge a fee for deletion or modification of specifications.

Practical steps available now

India has already moved partway. Rule 25 of the Trade Marks Rules, 2017 requires that where a date of use prior to the application is claimed, the applicant file an affidavit testifying to that use, with supporting documents. Before the 2017 Rules, a user date could be claimed with no corroboration at all.

Building on that, the most elementary steps are:

Enforce the user affidavit requirement properly — checking that affidavits come with sufficient evidence for all specifications claimed, not a token document.
Require user affidavits for ‘proposed to be used’ marks once evidence of first use exists. Filing contemporaneously reduces the risk of evidence being fabricated later, at a hearing where use from the claimed date must suddenly be proved.
Reflect the user date in the online record once the affidavit is filed. That single change would give owners a real incentive to file promptly.
Build checks into the process at stages during and after registration, rather than treating registration as the end of the inquiry.

The Trade Marks Act, 1999 was enacted, in the words of its Preamble, to provide for registration and better protection of trademarks and for the prevention of the use of fraudulent marks. Giving effect to that intention means ensuring marks are genuinely used for the goods and services they claim.

On a lighter note — perhaps the Preamble ought to be amended to cover the fraudulent non-use of marks as well.

The takeaways

India does not audit use after registration — and the Registry does not cancel unused marks on its own motion.
Non-use cancellation exists (five years and three months) but is rare, and now lies before the Registrar or High Courts after the IPAB’s abolition.
The USPTO’s audits found over half of owners overclaiming — a strong signal about registers everywhere.
Rule 25 user affidavits are the foundation to build on — enforced properly, and reflected in the online record.

Frequently asked questions

Does India check whether a registered trademark is being used? No — there is no post-registration audit system, and the Registry does not cancel unused marks on its own motion.

How can an unused trademark be removed from the Indian register? By an application for cancellation on grounds of non-use, available where the mark has not been used for a continuous period of five years and three months. Such applications now lie before the Registrar or the High Courts.

What is a user affidavit under Rule 25? Where an applicant claims use of the mark from a date before the application, the Trade Marks Rules, 2017 require an affidavit testifying to that use, supported by documents.

What does the USPTO audit programme require? A declaration of use between the fifth and sixth year of registration, with randomly selected registrations required to produce specimens showing current, actual use for all claimed goods and services.

India Needs a Post-Registration Trademark Audit Programme