By: Adv Arjun Goel, Director Agreya Legal
In today’s highly competitive market, trademarks play a crucial role in distinguishing brands, products, and services. Trademarks not only help build brand identity but also protect businesses from misuse and infringement. However, there are instances when a trademark might be registered improperly or in violation of legal principles. This is where Section 126 of the Trade Marks Act, 1999, comes into play, providing a mechanism for rectification and cancellation of trademarks.
If you’re a business owner, legal professional, or just curious about how trademarks are managed, understanding Section 126 is essential. In this blog, we will break down this section in simple terms and explain how it functions to maintain the integrity of trademark registration in India.
What is Section 126 of the Trade Marks Act?
Section 126 of the Trade Marks Act, 1999, outlines the procedure for filing applications for rectification or cancellation of a registered trademark. It enables anyone who feels aggrieved by the registration of a trademark to file a petition to correct the trademarks register or cancel a registration. This section offers a legal recourse to ensure that trademarks are not misused, fraudulently obtained, or incorrectly registered.
When Can You File for Rectification or Cancellation?
An aggrieved person (this could be a business owner, an individual, or any entity) can apply for rectification or cancellation in the following cases:
Fraud or Misrepresentation: If the registration of the trademark was obtained through fraudulent means or misrepresentation, it can be challenged under Section 126. For instance, if someone falsely claims ownership of a trademark and gets it registered, the rightful owner can file for rectification.
Contrary to Law: If a trademark is registered in violation of legal provisions, such as registration of a deceptive or offensive mark, the registration can be contested.
Non-Use of Trademark: If a registered trademark has not been in continuous use for a period of five years post-registration, it can be subject to cancellation. However, if there’s a valid reason for non-use, like a legal impediment or government restriction, this ground may not apply.
Where to File for Rectification?
Applications for rectification or cancellation can be filed in two forums:
- The Registrar of Trademarks: This is the primary authority where most applications for rectification are filed.
- The Appellate Board: In complex cases or those involving significant issues, the application may be made before the Intellectual Property Appellate Board (IPAB). If a court case involving a trademark is ongoing, the court may refer the matter to the Appellate Board for adjudication.
Correcting Clerical Errors
Aside from the cancellation or rectification of a trademark, Section 126 also addresses the correction of clerical errors in the trademarks register. For instance, if there’s a mistake in the registered owner’s name or an oversight regarding the trademark’s details, it can be corrected under this section. This ensures that the register accurately reflects the correct details.
The Process of Rectification or Cancellation
The procedure under Section 126 is judicial in nature, meaning it involves the submission of evidence, arguments, and hearings from both parties. Once the application is submitted, the Appellate Board or Registrar will review the case, allowing both the party seeking rectification and the trademark owner to present their arguments. Based on the merits of the case, the Board or Registrar may either rectify, cancel, or uphold the trademark registration.
Why Section 126 is Important
Section 126 is critical for maintaining the integrity of the trademark register. By allowing aggrieved parties to rectify or cancel improper registrations, it helps prevent fraud and protects the rights of legitimate trademark owners. This section ensures that businesses can trust the trademark system and that registrations are conducted in a fair and lawful manner.
For businesses, this section offers a safeguard against competitors who might try to register a trademark fraudulently or unlawfully. It also provides recourse in case your trademark is registered with errors, ensuring that you can correct those mistakes without losing your brand’s protection.
Thoughts
Trademarks are invaluable assets for businesses, and protecting them is crucial. Section 126 of the Trade Marks Act, 1999, serves as a vital tool for ensuring that trademark registrations are lawful, accurate, and fair. Whether you are seeking to cancel a competitor’s fraudulent trademark or correct a clerical error, this section provides the legal framework for doing so.
Understanding and utilizing this section effectively can help you safeguard your brand and ensure that your intellectual property rights are protected. If you ever find yourself in a situation where you believe a trademark has been wrongly registered, remember that Section 126 could be your first line of defense.