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Definition of 'Use'
Section 2(2) defines 'use' of a trademark as its visual representation on goods or services, or in any other relevant context concerning such goods or services.
Registration for Proposed Use
Section 46 allows for the registration of a trademark by a company yet to be formed. The applicant's intention to transfer the mark to a future company or to a registered user after registration is permissible. However, failure to register the company within the specified timeframe will result in the registration's cessation.
Removal of Trademark for Non-Use
Section 47 permits the removal of a trademark from the register due to non-use. An aggrieved party can apply for removal if there has been no bona fide intention to use the mark and if it has remained unused up to one month before the removal application.
The applicant must demonstrate non-use for a continuous period of five or more years preceding the application, up to three months earlier. Mere advertising of the mark without actual usage on goods does not constitute bona fide use.
Exceptions to Non-Use
Section 47(3) exempts cases of non-use due to special trade circumstances from removal. The burden of proof lies with the registered proprietor to establish such exceptions.
Territorial Limitation on Use
Under Section 47(2), territorial limitations may be imposed if the mark has not been used for five years in specific localities, either within India or for exports. Applicants for limitation must be registered under Section 12 and demonstrate aggrievement.
Evaluation Criteria for Removal
Before directing removal, the Registrar must ensure:
The application is made by a 'person aggrieved.'
The trademark remained unused for a continuous period of at least five years and three months prior.
No special circumstances existed that affected the trademark's use during this period.
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