A registered mark blocking your application is not necessarily a permanent obstacle. If it is not being used, or should never have been registered, it can be removed. Rectification is the remedy most applicants do not know exists, and it is frequently the cheaper answer to a Section 11 citation than arguing dissimilarity for two years and losing.
Starting at
₹24,999 onwards
Rectification
Applicants blocked by a cited mark; proprietors defending one
Timeline
Contested proceeding; varies
Section 47 allows removal for non-use where a mark was registered without a bona fide intention to use it and there has been no bona fide use up to three months before the application, or where there has been no bona fide use for a continuous period of five years and three months preceding the date of the application. Section 57 allows rectification of the register where an entry was made without sufficient cause, wrongly remains on the register, or contains an error or defect. The two are often pleaded together - Section 47 attacks the use, Section 57 attacks the validity of the registration itself.
TL;DR
Any 'person aggrieved' may apply, read broadly: an applicant whose mark has been cited, a trader hampered by the registration, or anyone facing an infringement threat based on it. You do not need to be a registered proprietor, but you do need a real, present commercial interest.
Person aggrieved
The standing test. Read broadly, but it requires a real, present commercial interest rather than a speculative one.
Section 47(3)
Special circumstances in the trade can excuse non-use - regulatory delay and restrictions on the trade generally, not the proprietor's own inertia.
The three-month proviso
Use resumed after the applicant has shown intent to apply, but within three months of the application, is disregarded under the proviso to Section 47.
IPAB abolition
The Intellectual Property Appellate Board was abolished by the Tribunals Reforms Act, 2021. Its jurisdiction went to the High Courts, several of which now have dedicated IP divisions.
The burden shifts. The applicant establishes a prima facie case of non-use; the proprietor must then produce evidence of bona fide use in the course of trade.
Any entry made without sufficient cause, wrongly remaining, or containing an error or defect can be cancelled, varied or corrected.
The position reverses and the work is evidentiary. Dated, documentary proof of continuous use in the five-year window is what decides it.
01
We confirm you are a person aggrieved and assess whether the case runs on non-use, on validity, or on both.
02
Market investigation, absence of any trace of the mark online or in trade directories, and absence of filing history suggesting use.
03
Before the Registrar, or before the High Court where the matter is already there. Evidence and affidavits compiled with the petition.
04
Representation before the Registrar, or instructing counsel for High Court proceedings.
Upload via our secure portal. We pre-check every scan before filing - cuts portal rejections by ~90%.
Still unsure if Rectification is right for your case? Book a free 20-minute consult - a senior CA / CS will walk you through your specifics.
Still have questions?
Book a free 20-minute consult with a senior partner - we'll walk through your case and outline next steps.
Talk to a partner →A senior CA / CS will get on a call with you, confirm scope and start the work - usually within 24 hours.
