Rectification of register — Intellectual Property Rights I Notes

Rectification of register

The Register is not sacred. A mark that should never have been registered, or one abandoned through years of non-use, can be scrubbed out — that clean-up power is rectification.

Rectification and removal — ss.47, 57

Rectification is the correction of the Register: cancelling or varying an entry, or removing a wrongly registered mark, on application by an aggrieved person to the Registrar (or, formerly, the IPAB; now the High Court).

Two main grounds:

Non-use — s.47. A mark may be removed if, for a continuous period of five years and three months, there was no bona fide use of it (and it was registered without a bona fide intention to use). Trade marks are meant to be used, not warehoused.
Wrongful entry — s.57. The Register may be rectified where an entry was made without sufficient cause, is wrongly remaining, or there is an error or defect — e.g. a mark registered in breach of s.9 or s.11.

Rectification is also the counter-attack a defendant in an infringement suit uses to knock out the plaintiff’s registration (linking to Topic 6’s invalidity defence).

Trade Marks Act, 1999, s.57(1): “On application made… by any person aggrieved, the… Registrar 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.”

In Simple Terms: Rectification cleans the Register. Remove a mark that has not been genuinely used for five years and three months (s.47), or one that was wrongly registered or is defective (s.57). An aggrieved person applies; it is also the standard way to attack an opponent’s registration.

🧩 WORKED EXAMPLE — the unused mark

Facts. A mark has sat registered but unused for over six years; a rival who wants to use it applies to remove it.

Rule. s.47 — a mark may be removed for a continuous period of five years and three months of non-use with no bona fide intention to use.

Apply. More than five years and three months of non-use is shown; the rival is an aggrieved person, so the mark is liable to be removed for non-use.

Conclusion. Rectification under s.47 succeeds; the Register is corrected and the mark cancelled.

flowchart TD
    RECT["Rectification of Register"]:::root
    RECT --> NU["Non-use — 5 years 3 months (s.47)"]:::leaf
    RECT --> WE["Wrongful / defective entry (s.57)"]:::leaf
    RECT --> WHO["By any aggrieved person"]:::leaf
    RECT --> USE["Also the invalidity counter-attack in an infringement suit"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;

Case Laws

Hardie Trading v Addisons Paint & Chemicals (2003) — explained “bona fide use” and who is an “aggrieved person” for rectification/non-use.
Kabushiki Kaisha Toshiba v TOSIBA Appliances (2008) — non-use under s.46/47 requires proof of absence of bona fide commercial use, judged in context.

📄 Full notes + Question Bank (₹199) — every topic in depth, model answers to all past KSLU questions, in one printable PDF. Get the bundle · 10 Solved Problems · All Intellectual Property Rights I topics