Minor alterations in a trade mark’s pictorial representation do not constitute non-use if identity remains substantially unaffected.

The Petitioner sought the rectification and removal of the first respondent’s (R1) registered trademark "Ayyappan Brand" (No. 899178 in Class 30) depicting Lord Ayyappa.

The petition was filed during the pendency of an infringement suit (O.S. No. 3 of 2012).

The Petitioner alleged that there was a discrepancy between the user date in the application (14.01.1999) and the Trade Mark Journal (13.07.1992) without evidence of a sanctioned amendment.

Furthermore, the Petitioner argued that R1 had not used the mark as registered, citing differences between the registered device and the pictorial representation used in R1's invoices, thereby warranting removal for non-use under Section 47.

1. Whether the impugned mark is liable to be removed under Section 57 due to the discrepancy in the user date between the application and the advertisement.

2. Whether the trade mark is liable to be removed for non-use under Section 47 of the Trade Marks Act, 1999.

3. Whether the use of an altered version of the registered mark constitutes "use" of the registered trade mark under Section 55.

The Court applied Section 47 of the Trade Marks Act, 1999, which provides for removal of a mark from the register on the ground of non-use for a continuous period of five years or lack of bona fide intent to use.

It further relied on Section 55(1), which allows the Registrar or Court to accept the use of a registered trade mark with additions or alterations that do not substantially affect its identity as equivalent to the use of the registered mark.

Section 57 was considered regarding the power to cancel or vary registration for contravention or failure to observe conditions.

Regarding the user date discrepancy, the Court noted that while the Registrar could not produce records due to their destruction, the R1 produced invoices dating back to 10.06.1993, which supported the earlier user claim; thus, no fraud or misrepresentation could be concluded to justify rectification under Section 57.

On the issue of non-use, the Court compared the registered mark (comprising a pictorial device, trading name in a ring, and "Ayyappan Brand" in a box) with the marks used in invoices.

While the pictorial depiction varied and some elements were rearranged, the Court held that under Section 55(1), these alterations did not "substantially affect the identity" of the mark.

Since R1 proved continuous bona fide use through invoices from 1993 to 2015, the requirements for removal under Section 47(1)(a) or (b) were not met.

The Court clarified that the use of the slightly altered mark qualified as proof of use of the registered mark per Section 55.

However, the Court noted that since R1 had not obtained permission for alteration under Section 59, in any future infringement action, the "deceptive similarity" must be tested against the mark as registered, not as used.

No costs were awarded.