Can a Registered Trademark Be Cancelled in India?

By Vedika Mittal, Sharma Kemp Chambers

Yes, a registered trade mark in India can be cancelled, and this happens more often than brand owners expect. Registration is not a permanent shield; it is a rebuttable entitlement that can be challenged at any point in its life, whether the mark has been dormant for years, was registered on a false claim of use, has become generic in trade, or was obtained by concealing a conflicting prior mark. At Sharma Kemp Chambers, I act on both sides of these disputes: for brand owners defending a valuable registration, and for businesses trying to clear a blocking mark off the Register so they can register or use their own.

This guide sets out the statutory grounds on which a registered trade mark can be cancelled, where such petitions are filed following the abolition of the Intellectual Property Appellate Board (IPAB), the step-by-step procedure, and what both sides should do to protect their position.

Quick Answer: What Are the Grounds and Where Do You File?

Before the detail, here is the framework, I use with clients assessing whether a mark is vulnerable, or whether their own registration is at risk:

• Non-use is the most common ground. If a mark has not been genuinely used for a continuous period of five years and three months from the date it was entered on the Register, it is vulnerable to removal under Section 47 of the Trade Marks Act, 1999.
• Wrongful registration is the broader ground. Under Section 57, a mark can be cancelled or the Register rectified where the entry was made without sufficient cause, offends the absolute or relative grounds of refusal under Sections 9 and 11, was obtained by fraud or misrepresentation, or has become generic or otherwise contrary to law.
• You generally need standing. Only a “person aggrieved,” broadly, someone whose business, application, or existing rights are genuinely affected by the mark’s presence on the Register, can file. A cancellation petition is not open to a stranger with no commercial interest.
• You can go to the Registrar or the High Court. Since the IPAB’s abolition in 2021, cancellation and rectification petitions can be filed either before the Registrar of Trade Marks or the appropriate High Court, and if an infringement suit is already pending, Section 124 governs how the two proceedings interact.

The Legal Framework Governing Trade mark Cancellation

Core Provisions of the Trade Marks Act, 1999

Section 47, Removal for Non-Use. A registered trade mark can be taken off the Register, in whole or for specific goods or services, on the ground that it was registered without a bona fide intention to use it and has in fact not been used, or that it has not been put to genuine use for a continuous period of five years and three months preceding the date of the application for removal. Courts have made clear that the use relied upon must be genuine commercial use in the ordinary course of trade, not token or sporadic use engineered to defeat a non-use challenge.

Section 57, Rectification of the Register. This is the broader cancellation power. It allows the Registrar or the High Court to cancel or vary a registration, and to make any order needed to bring the Register into conformity with the actual rights of the parties, where an entry was made without sufficient cause, wrongly remains on the Register, or contains an error or defect. This is the provision most often invoked where a mark was registered despite a deceptively similar prior mark, was obtained through misrepresentation to the Registry, or has since become generic or descriptive in the relevant trade.

Section 124, Stay of Infringement Suits Raising a Validity Challenge. Where a defendant in an infringement suit challenges the validity of the plaintiff’s registration, and rectification proceedings are already pending before the Registrar or High Court, the suit must be stayed pending that outcome. If no rectification proceedings are pending, the court first assesses whether the challenge is prima facie tenable; if it is, the court frames the issue and adjourns the suit for three months to allow the party to file a rectification petition. The Delhi High Court has clarified that the rights to seek cancellation under Sections 47 and 57 exist independently of Section 124, which offers an additional route rather than an exclusive one where a validity challenge arises inside a pending suit.

Where the Trade mark Rules, 2017 Come In

Procedurally, a cancellation or rectification application is filed in Form TM-O under the Trade Marks Rules, 2017, supported by a statement of case setting out the grounds relied upon. Where the application is contested, the registered proprietor files a counter-statement, followed by an exchange of evidence by affidavit under Rules 98 to 101, before the matter is set down for hearing.

The Post-IPAB Jurisdictional Landscape

Until 2021, most contested cancellation petitions were heard by the specialist IPAB. The Tribunals Reforms Act, 2021abolished the IPAB along with several other tribunals, and jurisdiction reverted to the Registrar of Trade Marks and the High Courts. Several High Courts, including Delhi, have since established dedicated Intellectual Property Rights Divisions with their own procedural rules for handling rectification and cancellation matters more efficiently.

This shift has also opened a live and currently unsettled question: which High Court has territorial jurisdiction to hear a cancellation petition where the mark was registered at one Registry (say, Delhi) but its commercial effect, or a related infringement suit, is felt elsewhere. The Delhi High Court has historically taken the view that a petition can be filed either where the Registry that granted the registration is situated, or where the “dynamic effect” of the registration is experienced. More recently, in 2025, the Madras High Court and the Kerala High Court have taken a narrower view, holding that jurisdiction lies exclusively with the High Court exercising appellate authority over the Registry that made the entry, partly out of concern that allowing petitions in multiple High Courts risks conflicting orders on the same mark. Given this is an evolving and jurisdiction-specific question, I recommend taking specific advice on where to file before doing so, rather than assuming the “dynamic effect” route remains uniformly available.

Registrar vs High Court: Where Should You File?

Step-by-Step: How to Seek Cancellation of a Registered Trade mark

Step 1: Confirm Your Standing and Ground

Establish that you are a “person aggrieved”, typically because the registered mark is blocking your own application, underlies an infringement claim against you, or otherwise genuinely affects your business, and identify the specific ground: non-use under Section 47, or one of the broader grounds under Section 57.

Step 2: Conduct a Use Investigation (for Non-Use Grounds)

Where non-use is the basis, gather evidence of the registered proprietor’s actual market presence, or its absence, over the relevant five-year-and-three-month window: trade channel checks, website archives, GST or import records where accessible, and searches for any product or service bearing the mark. This evidence base matters because the burden, once a credible non-use case is made out, shifts to the registered proprietor to demonstrate genuine use.

Step 3: File Form TM-O

File the cancellation or rectification application in Form TM-O, with the prescribed fee, before either the Registrar of Trade Marks or the appropriate High Court, supported by a statement of case that pleads the facts and the specific statutory ground relied upon.

Step 4: Respond to the Counter-Statement and Exchange Evidence

The registered proprietor is served and typically has two months to file a counter-statement; failure to do so can result in the mark being treated as abandoned in respect of the cancellation proceeding. Both sides then file evidence by affidavit, applicant first, followed by the registered proprietor’s evidence in support of use or validity, and a further round in reply.

Step 5: Attend the Hearing and Obtain the Decision

The matter is set down for hearing before the Registrar or the High Court, which will decide whether to cancel the registration in whole or in part, restrict it to specific goods or services, or dismiss the petition. Straightforward non-use matters before the Registrar can conclude in under two years where uncontested or lightly contested; validity challenges before a High Court, particularly where linked to a live infringement suit, commonly take considerably longer.

Step 6: Appeal, If Necessary

An order of the Registrar can be appealed to the High Court. A High Court’s decision on a rectification petition can be further appealed to a Division Bench of that High Court.

If You Are Defending a Registration Against Cancellation

• Maintain a use file from day one. Invoices, packaging, advertising, e-commerce listings, and distributor agreements bearing the mark, dated and organised by year, are the single most effective defence against a non-use challenge.
• Renew and monitor promptly. Missed renewals and unmonitored oppositions create the procedural gaps that make a mark vulnerable later.
• Respond to the counter-statement deadline. Failing to file a timely counter-statement is one of the most common, and entirely avoidable, reasons a registration is lost by default rather than on the merits.
• Consider partial use. If the mark has been used for some, but not all, of the goods or services covered by the registration, take advice early, since the registration may be defensible for the goods or services actually in use even where a Section 47 application succeeds for the rest.
• Check the challenger’s own standing. Not every applicant qualifies as a “person aggrieved”; this threshold issue is worth testing before engaging fully on the merits.

Two Hypothetical Scenarios

Scenario 1: Clearing a Dormant Blocking Mark

A food and beverage company wants to launch under a new brand name but finds an identical mark registered eight years earlier in the same class, with no evidence of the registrant ever having traded under it. After a use investigation confirms no genuine commercial activity since registration, the company files a Section 47 non-use petition before the Registrar. The registered proprietor does not file a counter-statement within the prescribed period, and the mark is removed, clearing the way for the new brand’s own application.

Scenario 2: Validity Challenge Inside an Infringement Suit

A regional manufacturer is sued for infringement by a company holding a registration for a mark the manufacturer believes is deceptively similar to a mark it has used, unregistered, for over a decade in the same market. The manufacturer raises the invalidity of the plaintiff’s registration as a defence. Since no rectification proceedings are already pending, the court assesses whether the challenge is prima facie tenable, finds that it is, frames the issue, and adjourns the suit for three months, during which the manufacturer files a rectification petition under Section 57 before the appropriate High Court.

Conclusion

A trade mark registration in India is a strong right, but it is not an unassailable one. Non-use, wrongful registration, and fraud remain live and frequently used grounds for cancellation, and the procedural landscape has shifted meaningfully since the IPAB’s abolition, both in terms of which forum to use and, as recent 2025 rulings show, exactly which High Court has jurisdiction. Whether you are seeking to clear a blocking registration or protect one that is under challenge, the outcome usually turns on evidence, use records on one side, standing and grounds on the other, gathered and pleaded correctly from the outset.

Need Legal Advice?

For specialist advice on trade mark cancellation, rectification, and enforcement in India, contact Vedika Mittal at Sharma Kemp Chambers.

Sources

1. Trade Marks Act, 1999, Government of India Legislative Department
2. Trade Marks Rules, 2017, Office of the Controller General of Patents, Designs and Trade Marks
3. Tribunals Reforms Act, 2021, Government of India Legislative Department
4. Delhi High Court, Intellectual Property Rights Division Rules, 2022
5. Office of the Controller General of Patents, Designs and Trade Marks