- Trademark application correction- when it is required?
Trademark application correction may be required for a number of reasons. Some of which are:
1. Erroneous data entry in the registration form
2. Erroneous filling of the trademark application form
- Procedure for trademark application correction-
The amendment or a correction in the trademark application form in India can bedone and brought into effect either before or after the Registrar has accepted the trademarkapplication. There is a statutory provision for this procedure. The amendment or correction of a trademark application can be done by virtue of Section 22 of the Trademarks Act, 1999 and Rule 41 of the Trademark Rules, 2002.
Section 22 of the Trademarks Act says that the Registrar may allow the correction of an error in the trademark application or may allow an amendment to be made in the application. This correction or amendment may be done before or after the application for the trademarkhas been accepted for registration.
Rule 41 of the Trademark Rules lays down the procedure for amending or correcting an application for a trademark. It says that before registering a trademark, an application for the same can be amended or corrected by filing a prescribed form along with the mentioned and prescribed fee.
However there is a proviso to this rule which states that any amendment to an application which substantially alters the original trademark or if it substitutes a new specification of the goods and services for which a trademark is sought and which has not been included in the initial applicationwill not be allowed. It ultimately depends on the Registrar to decide which amendment or correction in an application is to be permitted and which is not to be allowed. He/she decides so on the basis of the case presented before him/her.
Sometimes it may happen that after the examination of a trademark application, the examiner thinks that an amendment or a correction is required. He may then instruct an amendment or correction to the application to be done. For example, if the classification of the goods/services is not correct, the examiner is in a position to instruct you to file an appropriate form to correct the classification.
- Initial Position-
The initial position was that in an order dated June 8, 2012 the CGPDTM had issued an order which specifically and severely restricted the types of amendments that can be made to a trademark application. This specific order stated that a substantial alteration of the following will not allowed:
-The trademark of the product or good
-Proprietor details of the applicant
-The specification of goods/services for which trademark is sought to be registered (except deletion of some existing items)
-The statement as to the use of the mark
- Current Position-
The position is however changed now. On 09.10.2014 the High Court of Delhi had given a judgment in which it was declared that the above mentioned restriction on amendments of trademark application is illegal. The judgment laid down that the powers given to the Registrar under Section 22 of the Trademarks Act was quasi-judicial in nature.
Therefore, according to the current position, which has been decided by the High Court of Delhi is that the Registrar must decide whether the amendment which is claimed is bone fide that is it is made in good faith or not and he should decide this on a case to case basis.
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