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Which remedy applies to you
Rectification is one of four ways to deal with somebody else's mark, and which one is available depends entirely on where that mark is in its life.
| Where the other mark is | Remedy | Form and window |
|---|---|---|
| Still under examination, cited against your application | Argue the citation in your objection reply, or get a consent letter | Reply within one month of the examination report, no government fee |
| Advertised in the Trade Marks Journal, not yet registered | Opposition | Form TM-O within 4 months of advertisement |
| Registered, and blocking your application or your business | Rectification or removal | Form TM-O under section 47 or 57, no time limit |
| Registered, and being used against you in a cease and desist notice or a suit | Rectification, and section 124 if a suit is on foot | Form TM-O before the Registrar, or the High Court where section 124 applies |
Two consequences follow. First, rectification has no deadline, unlike opposition, which closes four months after advertisement. If you missed the Journal, you have not lost the fight. Second, rectification is usually the cheaper answer to a section 11 citation than two years of arguing that two similar marks are dissimilar, because a mark that is not being used cannot be defended on the evidence.
The two grounds, precisely
Section 47 is about use. Section 57 is about whether the entry should be there at all.
| Section 47 | Section 57 | |
|---|---|---|
| What it attacks | Non-use of a registered mark | The validity or correctness of the entry |
| Who may apply | A person aggrieved | A person aggrieved; the Registrar may also act on his own motion under section 57(4) |
| Core test, limb one | Registered without a bona fide intention to use, and no bona fide use up to three months before the application | The entry was made without sufficient cause |
| Core test, limb two | A continuous period of five years or longer from the date of entry in the register with no bona fide use, ending not more than three months before the application | The entry wrongly remains on the register, or contains an error or defect |
| Defence | Evidence of bona fide use in the course of trade, or special circumstances in the trade under section 47(3) | That the registration was properly granted |
| Outcome | The mark is removed, wholly or for some of the goods or services | The entry is cancelled, varied or corrected |
Three points people get wrong on section 47:
- The five years runs from entry in the register, not from the application date. A mark filed in 2020 and entered on the register in 2024 is not open to a non-use attack in 2026 on the five-year limb, however long the application sat in the Registry.
- Special circumstances excuse non-use, inertia does not. Section 47(3) covers restrictions on the use of the mark in India imposed by any law, or other special circumstances in the trade. Regulatory delay in a licensed sector can qualify. Forgetting about the brand does not.
- The three-month proviso blocks a late scramble. Use started up after the proprietor became aware that the application was coming, but within three months before the application, is disregarded. A proprietor who begins selling the week your notice arrives does not thereby defeat the petition.
Where a rectification is filed
Before the Registrar, unless an infringement suit has already put the validity of the registration in issue.
| Situation | Forum |
|---|---|
| No suit pending anywhere | The Registrar, in Form TM-O |
| An infringement suit is pending and you plead that the registration is invalid | Section 124: the court frames the issue and stays the suit, and the rectification goes to the High Court |
| A rectification was already pending before the suit was filed | Section 124: the court stays the suit pending its disposal |
| Appeal from the Registrar's order | The High Court. The Intellectual Property Appellate Board was dissolved by the Tribunals Reforms Act, 2021 and IP India has notified the dissolution |
This is the part worth getting right before anything is filed. If you are already facing a suit, or you are about to send a cease and desist notice that will provoke one, the forum question changes and so does the cost. Decide the litigation strategy first and the filing second.
How the work runs
- Register and market check. We pull the full prosecution history and current status of the target registration from the IP India register before advising.
- Standing, grounds and forum, assessed and set out in writing before anything is filed.
- The petition in Form TM-O, before the Registrar, or before the High Court where section 124 applies because validity has been put in issue in an infringement suit. Evidence and affidavits are compiled with the petition.
- The contested stages, including the proprietor's counter-statement and the evidence.
- Representation before the Registrar at the hearing. High Court proceedings are conducted by advocates: we prepare the Registry record and the evidence and brief counsel.
Evidence: both sides of the same file
A non-use petition is won and lost on documents, and the burden moves once.
If you are attacking the mark, you have to make out a prima facie case of non-use. You cannot prove a negative, so the work is building an absence:
- A market investigation: retailers, distributors, trade directories and the relevant trade channels.
- Online absence: no listings, no active website using the mark, no advertising, no social presence.
- Registry history: no renewal beyond the minimum, no licence recorded, no registered user entry.
- Corporate records: MCA filings and GST status of the proprietor, which can show the business itself is dormant.
If you are defending, the burden then sits with you and it is purely evidentiary:
- Dated invoices and purchase orders spanning the five-year window, not just the start and end of it.
- Advertising with dates, media invoices, packaging artwork, catalogues.
- Listings and marketplace records.
- GST returns showing turnover attributable to the mark.
- Use of a mark that differs only in an immaterial way still counts, and so does use on goods for export from India.
Businesses that did use the mark are the ones that most often lose here, because nothing was kept in a form that ties a date to the mark. If you own registrations you are not actively defending, build the evidence file while the evidence still exists.
Rectification fees
Our professional fee is on quote, because a rectification is a contested proceeding and the work depends on the stages it runs through. The government fee is fixed.
Government fee (First Schedule, Trade Marks Rules, 2017)
| What you are filing | E-filing | Physical filing |
|---|---|---|
| Rectification or removal application, Form TM-O | ₹2,700 per class, per registration attacked | ₹3,000 |
| Counter-statement by the proprietor, Form TM-O | ₹2,700 per class | ₹3,000 |
| Adjournment or other request, Form TM-M | ₹900 per request | ₹1,000 |
| Hearing before the Registrar | No government fee | No government fee |
Professional fee
| Stage | Regikart fee |
|---|---|
| Assessing standing, grounds and forum, with a register and market check | Fee on quote |
| Rectification petition with evidence, before the Registrar | Fee on quote |
| Defending a rectification against your registration | Fee on quote |
| Hearing representation before the Registrar | Fee on quote |
Professional fees exclude GST at 18%. Government fees, where they apply, are paid at actuals to the department and are shown separately. Fees verified on 22 September 2026.
High Court proceedings are different. Court fees, process fees and advocates' fees are third-party costs, they vary by court, and we do not quote them. We prepare the Registry record and the evidence and brief counsel.
What happens if the petition succeeds
The mark comes off the register, in whole or in part, and your own application is unblocked.
- Partial removal is common. Section 47 allows removal for the goods or services that were not used, leaving the rest. A proprietor who used a mark on shirts but registered it across the whole of class 25 can end up with a narrowed registration rather than none.
- Your citation falls away. Where the removed mark was the section 11 citation against your application, the objection goes with it, and the examination can proceed. Run the petition alongside your reply to the examination report rather than separately.
- The other side can appeal. To the High Court, which means the matter is not closed on the day of the order.
- Then renew and defend your own mark. A mark you fought for is worth diarising. See trademark renewal.
Not sure whether rectification or opposition is the right route? Send us the registration number and we will tell you which is open.