Fraud on Trade Mark office

Hemant Joshi (Querist) 27 October 2009 This query is : Resolved
sir,
pls advise me on the issue.
Is there any provision in Indian Trade Mark law just like US law regarding fraud on trade mark office? Can a registered proprietor held liable under Indian trade mark law for not using the mark within stipulated time (if yes, under what provision). Or if he concede that he is using the mark for all the discretion for which he is registered but actually using on one or some of the descriptions, then what would be consequences. what action would lie on him by Registrar of TM or by any third person.
Thanking you.

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R.R. KRISHNAA (Expert) 27 October 2009
If the registered proprietor has not put in use the trademark any other person can file rectification application to remove the said trademark from the register on the ground of non use and for any contravention or failure to observe any condition etc.

Even if a mark is wrongly registered it can be challenged.

you can refer section 57 of the Trademarks Act.

AEJAZ AHMED (Expert) 27 October 2009
Dear Hemant,

Yes it is there in our Indian Trade marks Act-1999. In addition to Mr.krishna, my reply to your query is as:

For the First Part of your Query:

Sec 47 of the Act dealt with for 'Removal of Trad Mark' on the ground of " Non-Use".

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47. Removal from register and imposition of limitations on ground of non-use:

(1) A registered trade mark may be taken off the register in respect of the
goods or services in respect of which it is registered on application made in the
prescribed manner to the Registrar or the Appellate Board by any person aggrieved on the ground either:-

(a) that the trade mark was registered without any bona fide intention on the
part of the applicant for registration that it should be used in relation to those
goods or services by him or, in a case to which the provisions of section 46 apply,
by the company concerned or the registered user, as the case may be, and that
there has, in fact, been no bona fide use of the trade mark in relation to those
goods or services by any proprietor thereof for the time being up to a date three months before the date of the application; or

(b) that up to a date three months before the date of the application, a continuous period of five years from the date on which the trade mark is actually
entered in the register or longer had elapsed during which the trade mark was
registered and during which there was no bona fide use thereof in relation to those
goods or services by any proprietor thereof for the time being:

( But under certain conditions, kindly go through the attached File: Trade Marks Act-1999)

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For the Second Part of your query, with regard to consequences on 'Non-Using' the Trad Mark Registered under the Act, The Registrar/Appellate Board can Cancel the Mark on 'Non-Use'.

It is meentioned in the Section-57 of the Trade marks Act 1999

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57. Power to cancel or vary registration and to rectify the register:

(1) On application made in the prescribed manner to the Appellate Board or to
the Registrar by any person aggrieved, the tribunal may make such order as it
may think fit for cancelling or varying the registration of a trade mark on the
ground of any contravention, or failure to observe a condition entered on the
register in relation thereto.

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