Rectification of the register

Who may institute proceedings to have a trade mark cancelled or expunged?

In the event of the non-insertion in or omission from the register of any entry or of an entry wrongly made in or wrongly remaining on the register, or of any error or defect in any entry in the register, any interested person may apply in the prescribed manner to the Registrar or to the court for the desired relief.

Grounds for removal of trade marks

A registered trade mark may be removed on the following grounds:

• where the trade mark does not comply with the requirements of the Act relating to registrability (Sections 9 and 10);
• breach of a condition of registration;
• that the mark was registered without a bona fide intention to use it and there has in fact been no use of such mark;
• non-use for a continuous period of five years or more from the date of issue of the registration certificate; or
• where a trade mark has been registered in the name of a company or an individual and such company has been dissolved or such individual has died, and the trade mark has not been assigned to another party within two years of such dissolution or death, as the case may be.

For further information regarding non-use provisions for trade marks (South Africa), click here.

Procedure

It is possible to institute rectification proceedings either before the Registrar or in the High Court. Proceedings before the Registrar are essentially the same as application proceedings in the High Court.

Where a matter before the Registrar cannot properly be decided on affidavit, he or she may refer the matter to the High Court or make such order as is deemed just and expeditious.

For further information regarding High Court proceedings in South Africa,click here.