Power to cancel or vary registration of trade marks
What is Trade Mark?
Trade mark means
- a mark capable of represented graphically and which is capable of distinguishing the goods or services of one person from choose of others and may include shape of goods, their packaging and combination of colors; and
- in relation to a registered trade mark or mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and
- some person having the right as proprietor to use the mark, and in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate to a connection in the course of trade between the goods or services, as the case may be, and
- some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark.
The Trade Mark Registry
It acts as a resource and information Centre and is a facilitator in matters relating to trademarks in the country.
The Trade Marks Registry established in India in 1940 and presently it administers the Trade Marks Act, 1999. The objective of the Trade Marks Act, 1999 is:
- to register trademarks applied for in the country and
- to provide for better protection of trademark for goods and services and also to prevent fraudulent use of the mark.
The main function of the Registry is:
- to register trademarks which qualify for registration as per provisions of the Trade Marks Act and Rules, and
- also to maintain the Register of trademarks.
Power to cancel or vary registration and to rectify the register:
(1) On application made by aggrieved person in the prescribed manner to the Appellate Board or to the Registrar. The tribunal may order for cancellation or varying the registration of a trade mark. Tribunal makes such order on grounds of any contravention or failure to observe a condition entered on the register.
(2) Any person aggrieved may apply in manner prescribed to the Appellate Board or to the Registrar for any absence or omission from the register of :
- any entry, or
- by also any entry made in the register without sufficient cause, or
- any entry wrongly remaining on the register, or
- by any error or defect in any entry in the register.
The tribunal may order for making, expunging or varying the entry as it may think fit.
(3) The tribunal may in any proceeding under this section decide any question that may necessary or expedient to decide in connection with the rectification of the register.
(4) The tribunal, suo motu, may, after giving notice to the parties concerned and after giving them an opportunity to present their sides, make any order.
(5) Any order of the Appellate Board rectifying the register shall also direct that notice of the rectification shall be served upon the Registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly.