A trademark registration in India is a conditional grant. The Trade Marks Act, 1999 confers a monopoly in the mark so long as the mark does the work for which the monopoly exists, namely to indicate the commercial origin of goods or services in the market. A proprietor who obtains registration and then leaves the mark idle holds a right that serves no public purpose and that obstructs every honest trader who would like to adopt the same or a similar mark. Section 47 of the Act is the statutory answer to that problem. It permits any person aggrieved to have a registered mark taken off the register, wholly or for particular goods or services, on the ground of non-use.
The provision matters well beyond the Registry. Non-use cancellation is the standard counter to a registration that has been obtained defensively, to a mark acquired by a stranger in anticipation of an Indian launch by a foreign brand, and to a “dead” registration that blocks a fresh application. It is also a frequent defence-side weapon in infringement suits, where a defendant facing an injunction on the strength of an unused mark turns to Sections 47 and 57 to attack the plaintiff’s title. For the plaintiff, the vulnerability is silent: the registration may look entirely healthy on the register until the day a rectification petition arrives.
This article examines Section 47 in full. It sets out the two limbs of sub-section (1), the arithmetic of the five-year-and-three-month period, the meaning of bona fide use, the special-circumstances exception in sub-section (3), the question of who is a person aggrieved, the allocation of the burden of proof, the procedure and forum after the Tribunals Reforms Act, 2021, and the interaction of non-use cancellation with a pending infringement suit under Section 124. The Supreme Court’s decisions in Hardie Trading and Patel Field Marshal, and the recent decisions of the Delhi High Court in Rong Thai, Allied Blenders and Kia Wang, are discussed in the course of the analysis, together with the international standards in TRIPS and the Paris Convention.
The Statutory Framework – Sections 47, 48(2) and 57 of the Trade Marks Act, 1999
Section 47(1) provides that a registered trade mark may be taken off the register in respect of the goods or services for which it is registered, on an application made in the prescribed manner to the Registrar or to the High Court by any person aggrieved, on either of two grounds. The reference to goods or services is significant, because removal is not all-or-nothing. A registration covering a wide specification may survive for the goods in which the mark is actually used and be removed for the rest, and Section 47(2) allows the Registrar or the High Court, in an appropriate case, to impose limitations on the registration instead of removing it, so that it ceases to extend to the goods or the places in respect of which the mark has not been used.
Section 47(3) is the shield. An applicant is not entitled to rely, for the purposes of sub-section (1)(b) or sub-section (2), on any non-use of the mark that is shown to have been due to special circumstances in the trade, which include restrictions on the use of the mark in India imposed by any law or regulation, and not to any intention to abandon the mark or not to use it in relation to the goods or services to which the application relates. Section 48(2) makes the provision workable in commercial practice. The permitted use of a mark, that is, use by a registered user or by another person with the proprietor’s consent, is deemed to be use by the proprietor and not use by a stranger, for the purposes of Section 47 and any other purpose for which use is material. Licensees, franchisees and group companies using the mark under the proprietor’s control therefore keep the registration alive.
Section 57 is the broader rectification provision. It empowers the Registrar or the High Court, on the application of a person aggrieved, to cancel or vary the registration of a mark for contravention of, or failure to observe, a condition entered on the register, and to rectify entries wrongly made or wrongly remaining on the register. Section 47 is the specific provision for non-use, with its own grounds and time limits, while Section 57 operates on other grounds such as invalidity. The Supreme Court has noted that the expression “person aggrieved” does not carry the same meaning in the two provisions, a point taken up below.
The Two Limbs of Section 47(1) – Bona Fide Intention and Continuous Non-Use
Section 47(1)(a) addresses the proprietor who never meant to use the mark. The applicant must show that the mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods or services by the applicant or, in a case to which Section 46 applies, by the company concerned or the registered user, and that there has in fact been no bona fide use of the mark in relation to those goods or services by any proprietor for the time being up to a date three months before the date of the application for removal. Both elements must be shown. Intention at the time of application is a state of mind, so the applicant proves it by inference from the absence of any use over a long period and from the proprietor’s conduct, and the proprietor answers it by evidence of real preparatory steps, such as product development, regulatory approvals or negotiations, that were being taken at the relevant time.
Section 47(1)(b) is the limb used most often, because it does not depend on the proprietor’s state of mind at the date of application. The applicant must show that, up to a date three months before the date of the application, a continuous period of five years from the date on which the trade mark is actually entered in the register, or longer, had elapsed during which the mark was registered and during which there was no bona fide use of it in relation to those goods or services by any proprietor for the time being. The period therefore runs from the date of actual entry on the register, and not from the date of application, and it ends three months before the removal application is filed. In practice this yields a period of five years and three months from the date of registration. A mark entered on the register on 1 January 2020, for example, completes five years of non-use on 1 January 2025, and a removal application based on that non-use can be filed on or after 1 April 2025.
Two features of the sub-section deserve emphasis. The non-use must be continuous, so that any bona fide use within the period interrupts it and defeats the application for that period. And the use that counts is use by “any proprietor for the time being”, so that a mark which has changed hands is assessed on the combined record of the successive owners, and an assignment does not restart the clock.
What Counts as Genuine Use – Bona Fide Use in Relation to Goods or Services
The Act does not define bona fide use, and the courts have supplied the content. The use must be honest and genuine and not pretended, it must be in relation to the goods or services for which the mark is registered, and it must be a use in the course of trade, which in practice means a real commercial transaction or a genuine and continuous offer of goods or services to the public in India. A token sale made on the eve of a rectification petition, a single invoice to an associate, or the printing of labels that are never put to market will not carry the burden. Use in a form that differs slightly from the registered form, without altering the distinctive character of the mark, is generally accepted as use of the mark.
The evidence that persuades a court is the evidence a business ordinarily generates: dated sales invoices across the relevant years, ledgers and sales registers, purchase orders, bank statements showing receipt of the price, advertising and promotional records, and trade-channel documents such as distributor agreements. Evidence that is undated, internally inconsistent, or confined to the period after a dispute arose attracts scepticism. The proprietor should also be ready to prove use on each class of goods, since a registration that is used for one item in a broad specification may be cut down for the rest.
Special Circumstances – Section 47(3) and the Decision in Hardie Trading
The Supreme Court’s decision in Hardie Trading Ltd. v. Addisons Paint and Chemicals Ltd., (2003) 11 SCC 92, decided under Section 46 of the Trade and Merchandise Marks Act, 1958, which corresponds to Section 47 of the 1999 Act, is the foundation of the modern law. The Court set out the conditions that must be satisfied before a mark can be removed for non-use: the applicant must be a person aggrieved, the mark must not have been used for the statutory period, and there must be no special circumstances that explain the non-use. It held that the expression “special circumstances in the trade” is wide enough to take in circumstances such as import restrictions that stand in the way of the proprietor’s use of the mark, provided the non-use is not due to an intention to abandon. The decision is cited in almost every non-use petition, and its statement that the law does not tolerate the hoarding of marks by those who have no intention to use them is balanced by its recognition that a proprietor who is prevented from using the mark by factors beyond its control should not lose it.
The line the courts draw is between obstacles and choices. Government restrictions, import bans, regulatory delays and similar impediments that exist independently of the proprietor’s will qualify as special circumstances. A commercial decision to defer launch, a lack of funds, or a change of business plan does not, because these are matters within the proprietor’s own control. The proprietor who invokes Section 47(3) carries the burden of proving the circumstance and its causal connection to the non-use, and the proof must show that the proprietor continued to hold the intention to use the mark once the obstacle was removed.
Who May Apply – The Person Aggrieved
Section 47 is available only to a person aggrieved. In Hardie Trading, the Supreme Court distinguished the meaning of the phrase in the non-use provision from its meaning in the general rectification provision. Because a non-use application serves the interest of the trade in being able to use marks that lie dormant, and does not involve the public mischief that attends a wrongly registered mark, the Court held that a person aggrieved in this context means a person who is interested in the removal of the mark. That includes a trader whose own application has been refused or opposed because of the impugned registration, a competitor in the same trade whose business is hindered by the existence of the unused mark, and a prospective user whose legal rights are likely to be restricted by it, and the applicant need not prove actual damage.
The Delhi High Court applied that standard in Allied Blenders and Distillers Ltd. v. Kulbir Singh, C.O.(COMM.IPD-TM) 191/2024, decided on 22 August 2025. The petitioner, a manufacturer of Indian-made foreign liquor, sought removal of a Class 33 registration standing in the first respondent’s name, and invoked Rule 7 of the Delhi High Court Intellectual Property Rights Division Rules, 2022 for the purpose. The Court held that the petitioner, being interested in the removal of the mark, was a person aggrieved, and that it had to prove non-use for a continuous period of at least five years from the date of entry on the register up to a date at least three months before the filing of the petition. The respondent had not specifically denied the allegation of non-use, and the Court treated the allegation as admitted and ordered removal under Section 47(1)(b). It followed the line of authority, including the decision in Kellogg Company v. Pops Food Products (P) Ltd., that unexplained non-use warrants removal.
In Kia Wang v. Registrar of Trademarks, decided by Jyoti Singh J. on 15 September 2023, the Delhi High Court dealt with a petition under Section 57 and relied on Hardie Trading for the test of a person aggrieved, and reiterated that maintaining the purity of the register is a matter of public interest. The case is a reminder that a challenger should plead its standing with the specificity that Hardie requires, setting out its own business, the goods in which it deals, and the way in which the impugned registration restricts it.
Burden and Evidence – The Decision in Rong Thai
The allocation of the burden of proof is the most contested practical issue in non-use petitions. The Delhi High Court addressed it in Rong Thai International Group Co. Ltd. v. Ena Footwear Pvt. Ltd., C.O.(COMM.IPD-TM) 100/2021, decided on 5 January 2024. The petitioner, a Thai footwear manufacturer, sought removal of the mark BAOJI, registered in Class 25 in the respondent’s name, on the footing that more than five years had passed since registration without bona fide use. It relied on an investigation report and on market research. The respondent produced sales invoices for the years 2012 to 2022, and the Court held that these established continuous and bona fide use during the relevant period. The Court dismissed the petition, observing that the burden of proving non-use lies on the applicant, that a challenge to removal must prove continuous non-use for at least five years from the date of entry on the register up to three months before the application, and that any bona fide use interrupts the continuity of non-use. The headline of the decision, as reported, is that removal for non-use requires clear and unequivocal evidence.
Read with Allied Blenders, the two decisions give a coherent picture. The applicant must establish a credible case of non-use and cannot succeed on a single self-sourced investigation report against a respondent with a documented trading history. But the respondent must meet the case, because where the allegation is not specifically denied, or where the respondent offers no evidence of use, the Court will proceed on the footing that non-use is established. Once the applicant has discharged the initial burden, the onus of showing use or special circumstances moves to the proprietor.
Long Non-Use and Intention – The Kellogg Litigation
The Kellogg litigation illustrates how the two limbs of Section 47(1) operate together against a well-known proprietor. The Intellectual Property Appellate Board, in a decision of January 2012, ordered the removal of the registration of the mark POPS standing in the name of Kellogg Company for non-use over a period of twenty-two years, and reasoned that such a long period without any evidence of use pointed to the absence of a bona fide intention to use. The Delhi High Court reviewed that order in 2018 in Kellogg Co. v. Pops Food Products (P) Ltd., and was concerned with two questions: whether the applicant was a person aggrieved, and whether the use of allied or associated marks could be considered in a non-use inquiry. The decision is cited in later cases, including Allied Blenders, for the proposition that unexplained non-use justifies removal. Its lesson is that global renown does not protect a mark that has been left idle in India, and that use of other marks in the same family does not substitute for use of the registered mark itself.
Procedure and Forum – Form TM-O, the Tribunals Reforms Act and Section 124
The procedure for removal is found in the Trade Marks Rules, 2017. An application is made in Form TM-O under Rule 97, supported by a statement of case setting out the facts and the relief claimed. After the Tribunals Reforms Act, 2021 abolished the Intellectual Property Appellate Board, the forum for such applications is the Registrar or the High Court, and the Delhi High Court’s Intellectual Property Rights Division hears rectification petitions directly under Rule 7 of its 2022 Rules, as Allied Blenders shows. The Rules provide for notice to the registered proprietor, a counter-statement, evidence by affidavit, and a hearing, and the proprietor who does not file a proper counter-statement and evidence risks the allegations being taken as admitted.
The relationship between a removal petition and a pending infringement suit is governed by Section 124. Where the validity of a registration is questioned in a suit for infringement, the court trying the suit must, if rectification proceedings are already pending, stay the suit pending their final disposal, and if they are not, it frames an issue on the prima facie tenability of the plea and, if satisfied, stays the suit to allow the party raising the plea to apply for rectification within the time allowed. The Supreme Court examined the corresponding provisions of the 1958 Act in Patel Field Marshal Agencies v. P.M. Diesels Ltd., decided on 29 November 2017 in Civil Appeal Nos. 4767-4769 of 2001, and held that where a suit is pending and the validity of the registration is in question, rectification must follow the procedure in the suit-related provision, so that the application is made to the High Court and not to the Registrar, notwithstanding the general rectification provision. The Court’s reasoning applies equally to Sections 47, 57, 124 and 125 of the 1999 Act, which are in substantially identical terms. A defendant who raises a non-use plea in an infringement suit must therefore follow the Section 124 route, and a plaintiff who is served with a rectification petition after filing the suit should look to Section 124 for the stay and the consequential directions. The Delhi High Court has since held that the right to seek cancellation under Section 57 remains available independently of Section 124.
International Standards – TRIPS, the Paris Convention and Comparative Practice
India’s non-use regime sits comfortably within its international obligations. Article 5C(1) of the Paris Convention provides that if use is compulsory for maintaining a registration, the registration may be cancelled only after a reasonable period and only if the person concerned does not justify his inaction. Article 19(1) of the TRIPS Agreement fixes the minimum: where use is required to maintain a registration, the registration may be cancelled only after an uninterrupted period of at least three years of non-use, unless valid reasons based on the existence of obstacles to such use are shown by the trademark owner, and circumstances arising independently of the owner’s will, such as import restrictions or other government requirements for the goods or services, are to be recognised as valid reasons. Article 19(2) provides that use of a mark by another person, subject to the owner’s control, is to be recognised as use for the purpose of maintaining the registration. The Indian provisions, with a statutory period of five years and three months, a special-circumstances exception that names legal restrictions, and the deeming of permitted use under Section 48(2), track these standards closely.
The comparison with other systems clarifies what “genuine use” means. In the European Union, the Court of Justice, in Ansul BV v. Ajax Brandbeveiliging BV (Case C-40/01), held that genuine use means actual use of the mark, which is not merely token and serves solely to preserve the rights conferred by the registration, and requires use that is consistent with the essential function of the mark of guaranteeing origin and that aims to create or preserve a market for the goods or services. The Indian courts’ insistence on honest and non-pretended use is the same idea expressed in different words. In the United States, Section 45 of the Lanham Act, 15 U.S.C. section 1127, treats non-use for three consecutive years as prima facie evidence of abandonment, which places the onus on the owner earlier than the Indian statute does.
Strategy for Proprietors and Challengers
For a proprietor, the lessons are practical. Use of the mark should be real, continuous, and documented in a form that can be produced years later, with invoices, ledgers and dated advertising kept for every class of goods in the specification. A specification should be kept to what the business actually does, since an overbroad specification is an invitation to partial removal. Licensees and franchisees should use the mark under written terms that preserve control, and the licence should be recorded where appropriate, so that their use is deemed use by the proprietor under Section 48(2). A proprietor facing an obstacle to use, such as a regulatory approval, should record the obstacle and the steps taken to remove it, because that record is the proprietor’s case under Section 47(3). And a proprietor served with a petition must file a counter-statement that meets every allegation specifically and must file its evidence of use, since silence is treated as admission.
For a challenger, the lessons run the other way. The application should not be filed until the continuous period of five years, together with the three-month margin, has fully run from the date of actual entry on the register. The petition should plead the applicant’s standing in detail, and the allegation of non-use should be supported by more than a single investigation report, with market surveys, online and offline trade checks, and a search of public sources for any trace of the mark in the market. Where an infringement suit is pending, the plea should be raised in the suit so that Section 124 operates. And the applicant should consider whether to ask for removal in respect of all the goods or only those in which use is lacking, since a targeted prayer is more likely to succeed on the evidence.
Conclusion
Section 47 is the means by which Indian trademark law keeps the register honest. It rests on a simple proposition, that a monopoly in a mark is earned by using it, and it works through a carefully balanced set of requirements: a person aggrieved, a continuous period of non-use measured from the date of actual entry on the register, an absence of special circumstances, and the burden of proof allocated between applicant and proprietor in stages. The Supreme Court’s decision in Hardie Trading supplies the conceptual framework, Patel Field Marshal explains how rectification fits with an infringement suit, and the recent Delhi High Court decisions in Rong Thai and Allied Blenders show the standard of evidence the courts expect from both sides.
The direction of the law is towards stricter scrutiny of the register. As the number of registrations grows and as the Delhi High Court’s Intellectual Property Rights Division takes rectification petitions directly, applications for removal on the ground of non-use are likely to be heard more quickly and decided on a fuller record. Proprietors who treat registration as the end of the exercise, and who do not maintain evidence of use, will find that the protection they hold is weaker than it appears. Those who use their marks genuinely, document that use, and keep their specifications honest will find that Section 47 poses little risk to them and a considerable risk to their competitors who do not.
References
- The Trade Marks Act, 1999, Government of India – https://legislative.gov.in/sites/default/files/A1999-47.pdf
- The Trade Marks Rules, 2017, Intellectual Property India – https://ipindia.gov.in/writereaddata/Portal/IPORule/1_38_1_Trade-Marks-Rules-2017.pdf
- Section 47, Trade Marks Act, 1999 (bare act text) – https://www.advocatekhoj.com/library/bareacts/trademarks/47.php
- Supreme Court of India, Judgments Portal – https://main.sci.gov.in
- Delhi High Court, Judgments Portal – https://delhihighcourt.nic.in
- Patel Field Marshal Agencies v. P.M. Diesels Ltd. (Supreme Court, 29 November 2017), WIPO Lex – https://www.wipo.int/wipolex/en/judgments/details/2987
- Allied Blenders and Distillers Ltd. v. Kulbir Singh (Delhi High Court, 22 August 2025), Indian Kanoon – https://indiankanoon.org/doc/59112863/
- Rong Thai International Group Co. Ltd. v. Ena Footwear Pvt. Ltd. (Delhi High Court, 5 January 2024), case report – https://www.casemine.com/judgement/in/659ee60973fe0f46b51e4d62
- Kia Wang v. Registrar of Trademarks (Delhi High Court, 15 September 2023), Indian Kanoon – https://indiankanoon.org/doc/95730350/
- Delhi HC clarifies the scope of “person aggrieved” under Section 47 (discussing Hardie Trading), SpicyIP – https://spicyip.com/2016/03/delhi-hc-clarifies-the-scope-of-person-aggrieved-under-section-47-of-the-trade-mark-act-1999.html
- Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Article 19 – https://www.wto.org/english/docs_e/legal_e/27-trips.pdf
- Paris Convention for the Protection of Industrial Property, Article 5C – https://www.wipo.int/treaties/en/ip/paris/
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