Trademark Restoration
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Trademark Restoration - Overview
A trademark is extremely vital for a newly launched product or business, especially for entrepreneurs looking to register a trademark and secure exclusive brand rights in India. However, trademark upkeep necessitates regular renewal and constant work. Abandonment or cancellation of a trademark might occur from failure to renew it. However, those who have unintentionally let their trademark runs out can find comfort in trademark restoration, which provides a lifeline.
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Restoration of Trademarks in India
A formal procedure of restoring a mark that has been deleted or removed from the Trademark Register due to an incomplete or delayed trademark renewal process. of the original or actual Trademark Registration is called Trademark Restoration. Any such trademark or service mark that has been removed from the Trademark Register due to the earlier registration not being renewed may still be stored there six months later or a year after the previous registration's expiration date. The Trademark Restoration application, the Restoration fee, and the necessary Renewal fee should be submitted in Form TM-R. The Trademark Registrar should keep in mind the interests of all other impacted parties when evaluating the request for the Restoration. Following the request's approval, the Trademark Registrar is required to publish a declaration about trademark restoration in the Trademark Journal.
Why Is a Trademark Restoration Necessary?
It is not enough to only file for a trademark; you must take proactive steps to renew or restore it every ten years in order to;
- Protect your company's branding from external sources
- Reinstate legal rights
- Keep the company and those connected to it safe
- Permits the pursuit of remedies and the filing of lawsuits against accusations of infringement of trademarks.
Applicable Legal Provisions for Trademark Restoration
The Trademarks Act, 1999's Section 25(4) allows applications for trademark renewal and restoration. The registrar "shall, while considering the request for such restoration and renewal, have regard for the interests of other affected persons," according to Rule 60 of the Trademark Rules, 2017, which also addresses restoration.
According to Section 25(3), in the event that a trademark's last registration expires, the registrar is required to notify the mark's owner of the impending expiration and the conditions surrounding the payment of fees. If this clause is not followed, the registrar is unable to remove the trademark from the register.
Eligiblity for Restoring a Trademark
To be eligible for restoration, your trademark needs to meet certain requirements,
- Failure to renew registration or five years of continuous non-use must have resulted in the trademark's removal from the register.
- Trademark restoration provides a lifesaver for trademarks that may have been lost during the renewal procedure.
- In order to avoid having their trademark removed, the owner must give enough proof of their justification for not renewing or using the mark. This could be because of things like disease, business closing, or not having enough money to maintain the trademark.
- It is important to remember that restoration can only be sought after the application deadline for trademark renewal has elapsed.
An Application for Trademark Restoration Is Submitted in Two Circumstances:
- In addition to other fees, the applicant must complete the registration procedure within six months of the trademark registration's expiration date.
- Both restoration and renewal fees are applicable, and the registration must be accomplished between six and twelve months following the trademark registration's expiration date.
The Following Participants May Submit Inquiries for Restoration or Renewal:
- The owner of the trademark registration
- An organization involved in the registration of the trademark.
Duration
You may submit this application for trademark restoration after six months have passed but no later than a year from the date the last trademark registration expired.
Required Documents
The following are a few of the documents required to restore a trademark:
- A copy of the certificate of trademark registration
- A photo ID and proof of address from the applicant
- A power of attorney is needed if the applicant is an authorized representative or agent.
- A copy of the trademark registration application form
- Furthermore, a proclamation specifying the reasons behind the trademark's non-renewal beyond the allotted period.
Forms Required
Form TM-12: When the renewal process is accomplished within the allotted period, this application is completed. There won't be a surcharge fee.
Form TM-10: When the renewal procedure is completed within the six months prior to the expiration date, this application is filled out. There will be a renewal cost in this circumstance.
Form TM-13: When a trademark is taken down from the register of trademarks, this form is filled out. Six months to a year after the registration's expiration date, the renewal and restoration process shall take place, and the applicant will be charged for both.
Compulsory Formal Notice to Registered Owner of Trademark From Trademark Registrar
The actual owner of the mark must receive notice from the Registrar that the trademark is up for renewal. The mark is deleted from the Register of Trademarks even after receiving this notice if the registered owner fails to submit a renewal application. The mark is deleted from the Register of Trademarks even after receiving this notice if the registered owner neglects to submit a renewal application.
Fees to Be Paid
| Type of form | Purpose | Physical Filing | E-filing |
| TM-R | Submission for Trademark renewal with an extra fee, as well as the process of restoring and renewing a Trademark according to sections 25(3) and 25(4) for each class | Rs. 10000/- plus renewal fee applicable under entry 3 | Rs. 9000/- plus renewal fee applicable under entry 3 |
The Trademark Restoration Process
Submitting a Trademark Application
The application form TM-R must be filed by the trademark owner or their authorized agent, together with the relevant documentation listed above and the required fees. The application must also include a statement explaining why the trademark was not renewed. The filing for trademark restoration must be done within a year of the proposed date but no later than six months after the expiration date.
Examine the Application’s Status
- The Trademark Registry has specific time-sensitive requirements that the applicant must complete, thus after a trademark proprietor makes an application for trademark restoration, they have to periodically verify on the application's status.
- It is necessary to follow the ongoing restoration application status check process until the Trademark Registry has completed the application process, which includes verifying formalities and ensuring quality, as well as other tests.
Trademark Journal Advertisement
The Trademark Registrar carefully accepts any affected parties' interests into consideration during the restoration process. Following the completion of the examination procedure and the approval of the restoration application, the trademark will be promoted in the Trademark Journal, which serves as official gazette.
The Refusal Basis for India’s Trademark Restoration
There are a few grounds for rejecting the restoration. These reasons are as follows:
- Insufficient Usage of the Mark: A primary cause of trademark expiration is non-use of the mark.
- The lack of Renewal Fees: Late fines and renewal fees must be paid in order to reinstate a trademark. Only when the owner covers these costs will the restoration be approved.
- The general public Interest: The Registrar of Trademarks has the authority to rule that it is not in the public interest for a trademark to be restored. Rejection may occur if the trademark is connected to a dishonest company or a product that causes harm to customers.
- Disputed or contradictory Trademarks: If a rival trademark was registered in the period between the trademark's expiration and renewal, the restoration of the registration may be refused. This is because it's possible that the rival brand has already gained recognition and goodwill.
- Look alike to Current Marks: A restored trademark will only be allowed to be restored if it is clearly related to an already-registered trademark. This is carried out to safeguard the legal rights of the present trademark holder and avoid customer confusion.
Risks Associated With Trademark Restoration
The following are the few hazards connected to trademark restoration:
- Legal issues: This may result in costly and time-consuming legal conflicts and battles.
- Loss of trademark rights: If the owner of a trademark does not comply with the requirements for eligibility or with necessary procedures for trademark restoration, they risk permanently losing their trademark rights.
- Damage to reputation: If the restored trademark is comparable to an already existing trademark or is connected to a bad reputation, it may harm the brand's or company's reputation.
- Increased competition: Market competitors may try to use similar trademarks or replicate the brand identity in order to obtain market share after trademark restoration.
- Market entry delay: The trademark restoration process can take some time and delay the launch of the good or service, which could cost money in missed sales.
Trademark Renewal vs Trademark Restoration
| Criteria | Renewal | Restoration |
| Time frame | Must be completed before expiration date or within 6-month grace period | Only applies after expiration between 6 and 12 months |
| Costs | Just the basic renewal fee is needed | Significant additional cost for restoration necessary in addition to renewal fees |
| Legal Status | Trademark protection has not expired | It involves momentarily losing the right to use the mark legally. |
Implications of Not Being Able to Restore the Trademark
- The owner had only one more chance to restore the trademark, as the trademark register offered no more opportunities. Negative effects result from not being able to restore the trademark. The trademark will be forcibly removed from the register by the registrar if the owner does not submit the restoration application in the allotted period or pay the required fees.
- The registrar may only enforce the aforementioned requirement if they have given advance notice to the parties involved by publishing a notice in the Trademark Journal that they intend to withdraw the trademark from the register.
- The owner forfeits all related rights in the event that the trademark is taken down from the register. The owner would no longer have the authority to bring a claim for infringement and defend the brand against rival companies.
Why Choose Kanakkupillai?
Kanakkupillai is a leading legal consulting company in India that offers comprehensive services related to Trademark Registration. Protect your brand and register your Trademark with ease. Secure your business identity with Kanakkupillai's trademark services. Let us handle your trademark registration while you focus on your business. We have the most trusted professionals for hassle-free trademark registration. Register your Trademark virtually, anytime, anywhere with Kanakkupillai.
If you want to transfer, renew, or restore your Trademark, don't hesitate to contact us immediately.
Frequently asked questions
The act of bringing back a mark that has been deleted or removed from the Register of Trademarks to the Trademark Register is known as trademark restoration.
A business's trademark is the most significant aspect of its existence since any tampering or unlawful use of it by any other company to which it does not belong provides the authorized company with the right to legal action.
Yes, third parties may oppose restoration within four months if they have valid reasons, as it is likewise openly announced in the Journal for renewals.
The mark may be deleted from the register for failure to renew, even if it is done more than six months after the previous registration's expiration date.
• Who owns the trademark • Their designated representative.
It is best not to use the mark during the trademark restoration procedure, which is in progress until you get confirmation of the restoration. You can use the mark as before after the restoration is approved.
The restoration of a trademark confers a ten-year extension on the rights and protection thereof.
• Taking the trademark off from the trademark registry • No protection against allegations of infringement
A trademark may be missed due to dilution, frequent usage, or abandonment. A trademark may be regarded as abandoned if another party can show that the owner plans to give it up.
Indeed, a trademark can always run the risk of becoming generic. A trademark may turn generic if it starts to lose its uniqueness.
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