Trademark Cancellation for Non-Use: Section 47 of the Indian Trade Marks Act

An Indian trade mark registration is not perpetual. Section 47 of the Trade Marks Act, 1999 lets any aggrieved person apply for cancellation of a registered mark on the ground that it has not been used in India for a continuous period of five years and three months before the application. This is the non-use cancellation route — distinct from rectification on substantive grounds under Section 57, distinct from opposition under Section 21, and one of the most strategically useful tools available to Indian businesses that find their preferred marks blocked by stale registrations.

This guide explains what Section 47 requires, what counts as 'use' for purposes of the section, what defences a registered proprietor has, and how the procedure works in practice.

The text and structure of Section 47

Section 47(1) provides two grounds for cancellation:

• Section 47(1)(a) — the trade mark was registered without bona fide intention to use, and there has in fact been no use up to a date three months before the cancellation application
• Section 47(1)(b) — there has been a continuous period of five years and three months ending three months before the application during which the mark was not used

The standing requirement is the same as for rectification under Section 57 — 'any aggrieved person'. The forum is the Registrar (or the High Court if litigation is ongoing). The procedure is identical to a Section 57 application: petition, counter-statement, affidavit evidence, hearing, order.

Section 47(3) provides important relief: cancellation will not be ordered if the proprietor shows that the non-use was due to special circumstances in the trade — supply-chain disruption, government restriction, regulatory delay, force majeure events affecting the relevant industry — rather than an intention to abandon the mark. The provision is occasionally invoked successfully, particularly in pharma where regulatory approval delays can keep a mark from commercial use for years.

Five years and three months. The Indian Register's quiet expiry clock.

What counts as 'use' under Section 47

The Trade Marks Act and the Indian courts have read 'use' broadly enough to defeat a non-use claim with relatively modest commercial activity, but not so broadly that mere token use saves the mark. Indicia of genuine use include:

• Manufacture, packaging or labelling of goods under the mark
• Sale of goods bearing the mark in India, in commercially meaningful volumes
• Advertising and promotion of the mark to Indian consumers
• Affixing the mark in business documents, invoices, and bills
• Use of the mark on the proprietor's website accessible from India, where the goods or services are offered to Indian consumers

Indicia that have been held insufficient by Indian courts:

• Trial-batch or token sales of negligible commercial value
• Pre-launch announcements or roadshows without actual goods on the market
• Use of the mark on internal documents not seen by Indian consumers
• Foreign use that does not translate into Indian commercial presence

The five-year-and-three-month math

The 5y+3m period is measured backwards from a date three months before the cancellation application. The proprietor's use must have been continuous for that period. A single instance of bona fide commercial use within the window defeats the petition. The proprietor does not need to show continuous use throughout the entire 5y+3m — even sporadic genuine commercial activity, properly evidenced, breaks the non-use claim.

The 'three months before the application' grace window is structural — it allows the proprietor to resume use after learning of an impending cancellation challenge, but only if such use begins more than three months before the application is filed. A resumption that begins within the three-month window does not save the mark; the petitioner counts those three months as still non-use.

The proprietor's defences

A proprietor facing Section 47 cancellation can run several defences:

1. Actual use within the relevant period — invoices, sales records, advertising materials, customs documents, GST returns referencing the mark
2. Use through a registered user or licensee — Section 49 use by a licensee on quality-control terms is the proprietor's use for non-use purposes
3. Special circumstances in the trade under Section 47(3) — regulatory delay, force majeure, supply-chain disruption, ongoing dispute that prevented commercial launch
4. Use in a form that does not substantially affect the distinctive character of the mark — Section 47 read with the use-in-different-form jurisprudence has accepted limited modifications

Use through a licensee — Section 49 considerations

Use by a registered user or a licensee whose use is under the proprietor's quality control counts as the proprietor's use. The licence must satisfy Section 49 requirements — written agreement, quality-control terms, registration with the Trade Marks Registry as a registered user (or compliance with the post-2017 'permitted use' framework). A defective licence — no quality control, no writing, no recordation — can fail to qualify, and the licensee's use will not save the proprietor in a Section 47 matter.

Combined with infringement defence

Where the petitioner has been sued for infringement of a stale mark, Section 47 cancellation is the natural counter-move. Section 124 of the Trade Marks Act allows the infringement court to stay proceedings pending the outcome of a credible Section 47 application — like the parallel stay for Section 57 rectification matters. For a defendant facing a non-use-vulnerable plaintiff, the combined infringement-defence-plus-cancellation strategy frequently produces a structural win.

Foreign-held marks and Indian non-use

Foreign brand holders who file Indian trade marks defensively — without commercialising in India — face significant Section 47 exposure. A defensive registration without commercial activity in the relevant class for 5y+3m is vulnerable. The proprietor's options to mitigate: enter India through licensing, file goods or services into Indian commerce, or convert to a different registration strategy. Some foreign brand holders maintain token sales specifically to defeat anticipated non-use challenges; courts increasingly scrutinise token use as insufficient.

The takeaway

Section 47 is the structural balance the Indian Trade Marks Act strikes against the squatter problem. Registrations obtained but not used can be cleared from the Register, freeing the marks for the businesses that actually want to commercialise them. For Indian businesses being blocked by stale registrations, the route is straightforward and frequently successful. For trade-mark holders, the implication is operational: continuous commercial use, with contemporaneous evidence, is the registration's life-support system. IPForte's trade mark practice handles both sides — defending against Section 47 challenges and bringing them against blocking registrations.