The registration of a trademark,after the commencement of the Trade and Merchandise Marks Act,1958,shall be for a period of ten years,but may be renewed from time to time in accordance with the provisions of the section 24 of the Trade and Merchandise Act,1958.The register shall on a application made by the registered proprietor of a trademark in the prescribed manner and within the prescribed period and subject to payment of the prescribed fee,renewal the registration of trademark for a period of ten years from the date of expiration of the original registration.
At the appropriate time before the expiration of the last registration of a trademark the registrar shall be send the notice in the appropriate manner to the registered proprietor of the date of expiration and the conditions as to payment of fees and otherwise upon which a renewal of registration may be obtained ,and,if the expiration of time prescribed in that behalf those conditions have not been duly complied with the registrar may remove the trademark from the register.Provided that the registrar shall not remove the trademark from the register if an application is made in prescribed fee and surcharge is paid within six months from the expiration of the last registration and renewal the trademark for a period of ten years under the sub-section(2).
Renewal time for applying
under the rule 63 of the Trade and Merchandise Act,1958,the application for the renewal has to be made within six months before the expiration of of the registered trademark.Only those persons who are either the proprietors, or registered owners or users of the trademark are eligible to apply for renewal.A person who is neither the proprietor ,nor registered owner or user has no right to apply for renewal on the basis of such mark,and an application by such a person is not maintainable.
Notice before removal of trademark from the register
At a date not less than one month and not more than two months before the expiration of the last registration of a trademark,if no application on form TM-12 for renewal of the registration together with the prescribed fee has been received,the Registrar shall notify the registered proprietor or in the case a jointly registered trademark each of joint registered proprietors and each registered user,writing in Form O3 approaching expiration at the address of their respective principal places of business in India as entered in the register or where registered proprietor or registered user has no principal place of business in India at his address for service in India entered in the register.(Rule 64)
Advertisement of removal of trademark from the Registrar
If at the expiration of last registration of the trademark the renewal fee has not been paid the registrar may remove the trademark from the register and advertise the fact forthwith in the journal.(Rule 65}
Restoration and renewal of registration
An application for the restoration of a trademark to the register and renewal of its registration under sub-section (4) of section 25, shall be made on Form T.M.13,within one year starting from the expiration of the last registrations of the trademark accompanied by the prescribed fee.(Rule 66).Section 25(2) of the Act empowers the register to renew the registration on an application from the registered proprietor.When the application for renewal is not from the registered then the registrar cannot exercise his power for renewal.Consequently the renewal order passed by the registrar in such case is liable to be set aside resulting in rectification of the register.
Article 226 of the Constitution of India is original and power under article 227 of the Constitution of India is revisional power.Remedy of the letters patent to Division bench of High court is available under article 226 of the Constitution of the aggrieved person.No such remedy is available under article 227 of constitution.
Notice and advertisement of renewal and registration
Upon the renewal of restoration and renewal of registration,a notice to that effect shall be sent to registered proprietor and every registered user and the renewal or restoration and the renewal shall be advertised in the journal(Rule 67).
Effect of removal from register for failure to pay fee for renewal
where a trademark has been removed from the register for failure to pay the fee for renewal,it shall nevertheless,for the purpose of any application for the registration of another trademark during one year,next after the date of removal,be deemed to be a trade mark already on the register ,unless the tribunal is satisfied either-
- that there has been no trade use of the trademark which has been removed during the two years immediately preceding its removal or;
- that no deceiving someone or confusion would be arise from the use of the trademark which is the subject of the application for registration by reason of any previous use of the trademark which has been removed.
Where a trademark has been removed from the register for the non payment of the prescribed fee,the Registrar shall, after six months and within one year starting from the expiration of the trademark,on receipt of an application in the prescribed form and on payment of the prescribed fees,if satisfied that it is just so to do,restore the trademark to the register and renew the registration of the trademark either generally or subject to any conditions or limitations as he thinks fit to impose,for a period of ten years starting from the date of expiration of last registration.