Trademark cancellation and rectification are the legal tools available to remove a registration that should not be on the Register. Under the Trade Marks Act, 1999, any aggrieved person can challenge a registered trademark — and with IPAB abolished in 2021, such petitions now go directly to the High Courts.
Who Can Apply?
Under Section 57 of the Trade Marks Act, any aggrieved person can apply. This broadly includes:
- A business whose operations are blocked by the registered mark
- A prior user with established goodwill
- A competitor with a legitimate interest in the Register being accurate
- Any person affected by a mark that has become deceptive or misleading
Section 47 — Non-Use Cancellation
This is the most powerful cancellation tool. A registered trademark can be removed on non-use grounds if:
- The mark was registered without any bona fide intention to use it in India, and no use has been made up to the application date, or
- The mark has not been genuinely used in India for a continuous 5-year period ending 1 month before the application date
💡 Why this matters for trademark squatting: A squatter who registered your brand name speculatively but never actually used it commercially is highly vulnerable to Section 47 cancellation after 5 years. Even before 5 years, the absence of bona fide intention at the time of registration is a valid ground.
What Is Genuine Use?
Genuine use means actual commercial use of the mark on goods or services for which it is registered — not token or symbolic use designed purely to defeat a cancellation action. Courts look at the volume and nature of commercial activity under the mark. Occasional sales made purely to maintain the registration do not qualify as genuine use.
Section 57 — Rectification
Rectification is broader than non-use cancellation. The Register can be rectified on grounds including:
- The mark should never have been registered (absence of distinctiveness, descriptiveness)
- The mark has become deceptive or common-to-the-trade after registration
- An error or defect in the Register entry
- Changed circumstances since registration
Bad Faith Ground
A registration obtained in bad faith — where the applicant knew of prior rights and registered the mark to take unfair advantage — can be cancelled under Section 57 read with Section 11(10). This is the primary tool against trademark squatters who registered your brand knowing you were using it. Evidence of bad faith includes the squatter's knowledge of your prior use, similarity to your mark, lack of any genuine commercial activity, and timing of the filing relative to your business activities.
The Process
- File petition at the High Court with jurisdiction (post-IPAB abolition)
- State specific grounds and relief sought; support with affidavit evidence
- Registered proprietor is served notice and given opportunity to respond
- Evidence rounds and hearing before the Court
- Order of the Court communicated to the Trade Marks Registry for implementation
Cancellation vs Opposition — Key Difference
| Feature | Opposition | Cancellation / Rectification |
|---|---|---|
| When available | After publication, before registration | After registration |
| Time limit | 4 months from publication (strict) | No fixed period (non-use: 5 years from registration) |
| Forum | Trade Marks Registry | High Court (post-IPAB) |
| Cost | Lower | Higher (court proceedings) |
Conclusion
Cancellation is powerful but slow and expensive. The best outcome is preventing a problematic registration in the first place through timely clearance searches and opposition. Where a registration already exists, Section 47 non-use is often the strongest path — particularly against speculative registrations. Learn about trademark cancellation and rectification services →
Is a registered trademark blocking your business?
Adv. Nikhil Soni handles trademark cancellation and rectification petitions before the Rajasthan High Court and across India.