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CHAPTER VII

MISCELLANEOUS

  1. Refusal of invalidation of registration of a trade mark conflicting with a geographical indication:

    A request in Form TM-73 or TM-74 as the case may be, may be made to the Registrar for the refusal or invalidation of a registered trade mark by an interested party along with a statement of case together with an affidavit and which: -
    (a) contains or consists of a geographical indication with respect to goods or class or classes of goods not originating in the territory of a country, or a region or locality in that territory which such geographical indication indicates, if the use of such geographical indication in the trade mark for such goods, is of such nature as to confuse or mislead the persons as to the true place of origin of such goods or class or classes of goods;
    a. contains or consists of geographical indication identifying goods or class or classes of goods notified under sub-section (2) of section 22 of the Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999).


  2. Single application under sub-section (2) of section 18. -

    (1) Where an application for the registration of a trade mark for different classes of goods or services is made under sub-section (2) of section 18, the specification of goods or services contained in it shall set out the classes in consecutive numerical order beginning with the lowest number and indicate in each class the goods or services appropriate to that class.



    (2) If the specification of goods or services contained in the initial application for registration of a trade mark makes a reference to a class or classes in the Fourth Schedule in which they do not fall, the Registrar shall require the applicant to correct the classification error in Form TM-16.
    (3) Applications filed under sub-section (2) of section 18 when ordered to be advertised shall be published in a separate section of the Journal.
    (4) The Registrar shall issue a single certificate of registration in respect of an application made under sub-section (2) of section 18 which has proceeded to registration.
  3. Divisional Application. -

    (1) Where an application is made in Form TM-53 under proviso to section 22 for the division of a single pending application, such application shall be divided into two or more separate applications on the payment of a divisional fee and such class fees as are appropriate in accordance with the division.
    (2) At any time before registration an applicant may request the Registrar in Form TM-53 for a division of his initial application for registration into two or more separate applications (divisional applications),indicating for each division the specification of goods or services. The Registrar shall treat each divisional application as a separate application for registration with the same filing date as the initial application.
    (3) In the case of a request to divide some goods or services, but not all in a class, a divisional fee for separate application to be created by division shall be paid. Any time limit for any action by the applicant in relation to the initial application at the time of division shall be applicable to each new separate application created by division irrespective of the date of the division.
    (4) If the request to divide is not accompanied by necessary fee or is otherwise deficient, the Registrar shall notify the applicant of the deficiency. The applicant may correct any such deficiency within thirty days. If the applicant fails to correct the deficiency within the time provided, the request shall be considered as abandoned and the application shall proceeded further without regard to the request.
    (5) Where a request to divide an application is received, the Registrar shall assign an additional separate new serial number or numbers, as the case may be, and it shall be cross referenced with the initial application. Such additional separate application or applications shall be assigned the same filing date as the initial application.
    (6) For the removal of doubt, it is clarified that no new registration is effected when a single application is divided. On the contrary, application already filed are merely separated or divided into individual files.


  4. Extension of time. -

    (1) An application for extension of time under section 131 (not being a time expressly provided in the Act or prescribed by rule 79 or by sub-rule (4) of rule 80 or a time for the extension of which provision is made in the rules) shall be made in Form TM-56.
    (2) Upon an application made under sub-rule (1) the Registrar, if satisfied that the circumstances are such as to justify the extension of the time applied for, may, subject to the provisions of the rules where a maximum time limit is prescribed and subject to such conditions as he may think fit to impose, extend the time and notify the parties accordingly and the extension may be granted though the time for doing the act or taking the proceeding for which it is applied for has already expired.


  5. Exercise of discretionary power of Registrar. - The time within which a person entitled under Section 128 to an opportunity of being heard shall exercise his option of requiring to be heard shall, save as otherwise expressly provided in the Act or the rules, be one month from the date of a notice which the Registrar shall give to such person before determining the matter with reference to which such person is entitled to be heard. If within that one month such person is required to be heard, the Registrar shall appoint a date for the hearing and shall give 10 day's notice thereof.

  6. Notification of decision. - The decision of the Registrar in the exercise of any discretionary power given to him by the Act or the rules shall be notified to the person affected.

  7. Amendments and correction of irregularity in procedure. -

    (1) Any document or drawing or other representation of a trade mark may be amended, and any irregularity in procedure which, in the opinion of the Registrar, may be obviated without detriment to the interests of any person, may be corrected, if the Registrar thinks fit and on such terms as he may direct.
    (2) The Registrar may require the amendment of any application or representation of a trade mark or any other document or the addition of any matter thereto in order to bring it in accordance with the formal requirements of the Act.


  8. Directions not otherwise prescribed. - Where in the opinion of the Registrar, it is necessary for the proper prosecution or completion of any proceedings under the Act or rules for a person to perform an act, file a document or produce evidence, which is not provided for by the Act or the rules, the Registrar may by notice in writing require the person to perform the Act, file the document or produce the evidence, specified in the notice.

  9. Opinion of the Registrar under Section 115(4). -

    (1) Where a matter has been referred to the Registrar for his opinion under proviso to sub-section (4) of section 115 such opinion shall be forwarded under a sealed cover within seven working days of the receipt of such written intimation to the referring authority and the Registrar shall ensure complete confidentiality in the matter so referred.
    (2) The opinion under this rule shall be given by the Registrar or an officer specially authorised for this purpose under sub-section (2) of section 3 and the name of the designated officer shall be published in the journal.

    HEARINGS

  10. Hearings. -

    (1) In relation to a trade mark for which an application for registration is made on or after the notified date, the application as well as any proceeding under the Act and the rules shall, in the event of a hearing becoming necessary, be heard at the office of the Trade Marks Registry at which such application was made under sub-section (3) of section 18, or at such place within the territorial jurisdiction of that office as the Registrar may deem proper.
    (2) In relation to a trade mark for which an application for registration is pending before the Registrar, at the notified date, the hearing, if any, in respect of such application or any proceeding under the Act and the rules shall be taken at the appropriate office of the Trade Marks Registry or at such place within the territorial jurisdiction of that office as the Registrar may deem proper.
    (3) In relation to a trade mark on the register of trade marks at the notified date, the hearing, if any, in respect of any proceeding under the Act and the rules shall take place at the appropriate office of the Trade Marks Registry or at such place within the territorial jurisdiction of that office as the Registrar may deem proper.
    (4) Where an officer exercising the powers of the Registrar who has heard any matter under the Act or the rules, has reserved orders therein, is transferred from one office of the Registry to another or reverts to another appointment before passing an order or rendering decision therein, he may, if the Registrar so directs, pass the order or render the decision as if he had continued to be the officer in the office of the Trade Marks Registry where the matter was heard.

    AWARD OF COSTS BY REGISTRAR

  11. Costs in uncontested cases. - Where any opposition duly instituted under the rules is not contested by the applicant, the Registrar in deciding whether costs should be awarded to the opponent shall consider whether the proceedings might have been avoided if reasonable notice had been given by the opponent to the applicant before the notice of opposition was filed.

  12. Exception to rule 112. - Notwithstanding anything in rule 112, costs in respect of fees specified under entries, 12,14 and 15 of the First Schedule and of all stamps used on and affixed to affidavits used in the proceedings shall follow the event.

  13. Scale of costs. - Subject to the provisions of rules 112 and 113, in all proceedings before the Registrar, he may, save as otherwise expressly provided by the Act, award such costs, not exceeding the amount admissible thereof under the Sixth Schedule, as he considers reasonable having regard to all the circumstances of the case.

    REVIEW OF DECISION BY REGISTRAR

  14. Application for review of Registrar's decision. - An application to the Registrar for the review of his decision under sub-section (c) of section 127 shall be made in Form TM-57 within one month from the date of such decision or within such further period not exceeding one month thereafter as the Registrar may on request allow, and shall be accompanied by a statement setting forth the grounds on which the review is sought. Where the decision in question concerns any other person in addition to the applicant, such application and statement shall be left in triplicate and the Registrar shall forthwith transmit a copy each of the application and statement to the other person concerned. The Registrar may, after giving the parties an opportunity of being heard, reject or grant the application, either unconditionally or subject to any conditions or limitations, as he thinks fit.

    AFFIDAVITS

  15. Form, etc. of Affidavits. -

    (1) The Affidavits required by the Act and the rules to be filed at the Trade Marks Registry or furnished to the Registrar, unless otherwise provided in the Second Schedule, shall be headed in the matter or matters to which they relate, shall be drawn up in the first person, and shall be divided into paragraphs consecutively numbered; and each paragraph shall, as far as practicable, be confined to one subject. Every affidavit shall state the description and the true place of abode of the person making the same and shall bear the name and address of the person filing it and shall state on whose behalf it is filed.
    (2) Where two or more persons join in an affidavit, each of them shall depose separately to such facts which are within his personal knowledge and those facts shall be stated in separate paragraphs.
    (3) Affidavits shall be taken -
    (a) in India -before any court or person having by law authority to receive evidence, or before any officer empowered by such court as aforesaid to administer oaths or to take affidavits;
    (b) in any country or place outside India - before a diplomatic or consular officer, within the meaning of the Diplomatic and Consular Officers (Oaths and Fee) Act, 1948 (41 of 1948), of such country or place or before a notary public or before a Judge or Magistrate, of the country or place.
    (4) The person before whom an affidavit is taken shall state the date on which and the place where the same is taken and shall affix his seal, if any, or the seal of the court to which he is attached thereto and sign his name and description at the end thereof.
    (5) Any affidavit purporting to have affixed, impressed or subscribed thereto or thereon the seal or signature of any person authorised by sub-rule (3) to take an affidavit, in testimony of the affidavit having been taken before him, may be admitted by the Registrar without proof of the genuineness of the seal or signature or of the official character of that person.
    (6) Alterations and interlineations shall, before an affidavit is sworn or affirmed, be authenticated by the initials of the person before whom the affidavit is taken.
    (7) Where the deponent is illiterate, blind or unacquainted with the language in which the affidavit is written, a certificate by the person taking the affidavit that the affidavit was read, translated or explained in his presence to the deponent, that the deponent seemed perfectly to understand it and that the deponent made his signature or mark in his presence, shall appear in the jurat.
    (8) Every affidavit filed before the Registrar in connection with any of the proceedings under the Act or the rules shall be duly stamped under the law for the time being in force.

    INSPECTION OF DOCUMENTS BY THE PUBLIC

  16. Inspection of documents. - The documents mentioned in sub-section (1) of section 148 shall be available for inspection at the head office of the Trade Marks Registry. A copy of the register and such of the other documents mentioned in section 148, as the Central Government may by notification in the Official Gazette direct, shall be available for inspection at each branch office of the Trade Marks Registry. The inspection shall be on payment of the prescribed fee and at such times on all the days on which the offices of the Trade Marks Registry are not closed to the public, as may be fixed by the Registrar.

  17. Distribution of copies of Journal and other documents. - The Central Government may direct the Registrar to distribute the Journal and any other document which it may consider necessary, to such places as may be fixed by the Central Government in consultation with the State Governments and notified from time to time in the Official Gazette.

    CERTIFICATES

  18. Certified copies of documents. - The Registrar may furnish certified copies of any entry in the register or certified copies of any documents referred to in sub-section (1) of section 148 or of any decision or order of the Registrar, or give a certificate other than a certificate under sub-section (2) of section 23 as to any entry, matter or thing which he is authorised or required by the Act or the rules to make or do, upon receipt from any person of an application therefore in Form TM-46 accompanied by the prescribed fee. The Registrar shall not be obliged to include in any certificate or certified copy, a copy of any mark unless he is furnished by the applicant with a copy thereof suitable for the purpose:
    Provided that the Registrar may furnish an expedited certified copies of the documents aforementioned within thirty working days on a request in Form TM-70 received to that effect on payment of five times the ordinary fees for such request.

  19. Certificate for use in obtaining registration abroad. -

    (1) Where a certificate relating to the registration of a trade mark is desired for use in obtaining registration in any territory outside India, the Registrar shall include in the certificate a copy of the mark and may require the applicant for the certificate to furnish him with a copy of the mark suitable for that purpose, and if the applicant fails to do so, the Registrar may refuse to issue the certificate.
    (2) Where a trade mark is registered without limitation of colour, the copy of the mark to be included in the certificate, may be either in the colour in which it appears upon the register or in any other colour or colours and it shall be stated in the certificate that the trade mark is registered without limitation of colour.
    (3) The Registrar may state in the certificate such particulars concerning the registration of the mark as may deem fit to him, and may specify the terms and conditions and other limitation appearing on the Register. The purpose for which the certificate is issued shall be stated therein.


  20. Power of Registrar to notify International Non-proprietary names. - The Registrar shall from time to time publish in the Journal, the words which are declared by the World Health Organisation as international non-proprietary names referred to in sub-section (b) of section 13.

    APPEALS TO THE INTELLECTUAL PROPERTY APPELLATE BOARD

  21. Time for appeal. - An appeal to the Intellectual Property Appellate Board from any decision of the Registrar under the Act or the rules shall be made within three months from the date of such decision.

  22. Service to the Registrar. - A copy of every application to Intellectual Property Appellate Board under the Act shall be served on the Registrar.

    CERTIFICATE OF VALIDITY

  23. Certificate of validity to be noted. - Where the Intellectual Property Appellate Board has certified as provided in section 141 with regard to the validity of a registered trade mark the registered proprietor thereof may request the Registrar in Form TM-47 to add to the entry in the register a note that the certificate of validity has been granted in the course of the proceedings, particulars of which shall be given in the request. An officially certified copy of the certificate shall be sent with the request, and the Registrar shall record a note to that effect in the register and publish the note in the Journal.

    RETURN OF EXHIBITS AND DESTRUCTION OF RECORDS.

  24. Return of exhibits. -

    (1) Where the exhibits produced in any matter or proceeding under the Act or the rules are no longer required in the Trade Marks Registry, the Registrar may call upon the party concerned to take back the exhibits within a time specified by him and if the party fails to do so, such exhibits shall be destroyed.
    (2) Where, before the notified date any exhibits have been produced in any proceeding, the Registrar may, if satisfied that it is no longer necessary to retain them call upon the party concerned to take back the exhibits within a time specified by him and if the party fails to do so, such exhibit shall be destroyed.


  25. Destruction of records. - Where an application for the registration of a trade mark has been withdrawn/abandoned or refused or a trade mark has been removed from the register or in an opposition or rectification proceeding the matter has been concluded and no appeal is pending before the Intellectual Property Appellate Board, the Registrar may, at the expiration of three years after the application is withdrawn or is abandoned or is refused or after the trade mark is removed from the register or the opposition or rectification proceeding is closed, as the case may be, destroy all or any of the records relating to the application, opposition or rectification or the trade mark concerned.

PART I


CHAPTER 1 - PRELIMINARY

CHAPTER II - PROCEDURE FOR REGISTRATION OF TRADE MARKS APPLICATION

CHAPTER III - RENEWAL OF REGISTRATION AND RESTORATION

CHAPTER IV - ASSIGNMENT AND TRANSMISSION

CHAPTER V - REGISTERED USERS

CHAPTER VI - RECTIFICATION AND CORRECTION OF REGISTER
ALTERATION OR RECTIFICATION OF REGISTER


CHAPTER VII - MISCELLANEOUS

PART II


SPECIAL PROVISIONS FOR COLLECTIVE MARKS

PART III


SPECIAL PROVISIONS FOR CERTIFICATION TRADE MARKS

PART IV


SPECIAL PROVISION FOR TEXTILE GOODS

PART V


REGISTRATION OF TRADE MARKS AGENTS

PART VI


PROVISIONS RELATING TO TESTING AND MARKING OF PIECE-GOODS AND YARN

PART VII


REPEAL


FORM TM-1

FORM TM-2

FORM TM-3

FORM TM-4

FORM TM-5

FORM TM-6

FORM TM-7

FORM TM-8

FORM TM-9

FORM TM-10

FORM TM-12

FORM TM-13

FORM TM-14

FORM TM-15

FORM TM-16

FORM TM-17

FORM TM-18

FORM TM-19

FORM TM-20


FORM TM-21

FORM TM-22

FORM TM-23

FORM TM-24

FORM TM-25

FORM TM-26

FORM TM-27

FORM TM-28

FORM TM-29

FORM TM-30

FORM TM-31

FORM TM-32

FORM TM-33

FORM TM-34

FORM TM-35

FORM TM-36

FORM TM-37

FORM TM-38

FORM TM-39

FORM TM-40


FORM TM-41

FORM TM-42

FORM TM-43

FORM TM-44

FORM TM-45

FORM TM-46

FORM TM-47

FORM TM-48

FORM TM-49

FORM TM-50

FORM TM-51

FORM TM-52

FORM TM-53

FORM TM-54

FORM TM-55

FORM TM-56

FORM TM-57

FORM TM-58

FORM TM-59


FORM TM-60

FORM TM-61

FORM TM-62

FORM TM-63

FORM TM-64

FORM TM-65

FORM TM-66

FORM TM-67

FORM TM-68

FORM TM-69

FORM TM-70

FORM TM-71

FORM TM-72

FORM TM-73

FORM TM-74

FORM TM-75

FORM TMA-1

FORM TMA-2

FORM TMA-3


THE THIRD SCHEDULE


FORM 0-1

FORM 0-2

FORM 0-3

FORM 0-4

THE FOURTH SCHEDULE


Classification of goods and services - Name of the classes

THE FIFTH SCHEDULE


List of items of textile goods referred to in rule 145

THE SIXTH SCHEDULE


Scale of costs allowable in Rule 114 proceedings before the Registrar

PART VIII


Language of the Trade Marks Registry

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