Abandoned Trademark Application: Every Deadline That Kills It, and What Is Left

Quick answer

"Abandoned" is not one thing. Rule 31 (unremedied filing deficiency) and Section 21(2) (missed counterstatement) abandon an application automatically — the words are "shall be treated as" and "deemed to have abandoned." Rule 33(4) (no reply to the examination report), Rule 33(7) (no reply and no appearance at the hearing) and Section 23(3) (registration not completed within twelve months through the applicant's default) all say the Registrar may treat it as abandoned. That verb is the whole basis of the Section 132 route — a notice, a chance to remedy, and an opportunity of being heard before abandonment takes effect.

Who this is for

Anyone who has just checked a trademark status and found a word they did not expect. Applicants who missed a reply date and were told the file is dead. Businesses that let a registration lapse and want to know whether the name is recoverable. And anyone deciding between fighting for an old application and simply filing again — a decision that turns almost entirely on the priority date.

First, separate the two things that both get called "abandoned"

They are governed by different chapters and behave completely differently.

An application can be abandoned during prosecution — before it ever becomes a registration. That is the first half of this article.

A registration can be removed from the register — for non-payment of the renewal fee, or on a successful non-use or rectification application. That is the second half.

People use "abandoned" for both, and then apply the wrong deadline to their own situation. Establishing which one you are in is the first move, and it is usually visible from the status record and the dates on it.

The six ways an application ends

Here is the map. The verb column is the one that matters.

Two of those six are worth reading twice.

Rule 31 is automatic. A formality defect flagged at filing, left unremedied for a month from the notice, and the application shall be treated as abandoned. No discretion is expressed. This is the deadline most likely to be missed by someone who filed themselves and did not watch the correspondence.

Section 21(2) is automatic and it is the harshest. Miss the two-month counterstatement window in an opposition and the Act itself deems the application abandoned. Contrast that with the examination stage, where the Registrar may treat it as abandoned — different word, different world.

Why "may" matters: Section 132

Where the provision is discretionary, abandonment is something the Registrar decides to do, not something that happens to you. Section 132 is written on exactly that footing:

Where, in the opinion of the Registrar, an applicant is in default in the prosecution of an application …, the Registrar may, by notice require the applicant to remedy the default within a time specified and after giving him, if so, desired, an opportunity of being heard, treat the application as abandoned, unless the default is remedied within the time specified in the notice.

Read it as a sequence rather than a sentence and it says: default → notice → a specified time to remedy → an opportunity of being heard if desired → abandonment, unless the default is remedied.

The Registry's own draft practice guidance records a matching office practice: where no response arrives within one month of receipt of the examination report, "a notice under Section 132 of Trade Marks Act 1999 shall be generated from the system requiring the applicant to submit response to examination report within one month", and only if that notice too goes unanswered is an abandonment order generated.

Three honest caveats, because this is where content usually oversells.

1. The Manual describes that practice against Rule 38(4)/(5) of the repealed 2002 Rules. The equivalent examination rule is now Rule 33(4), and the 2017 Rules contain no express restatement of the old Rule 38(5) notice.
2. We could not verify from any current official source whether the Registry still issues that notice as described. The Manual predates the 2017 Rules.
3. Section 132 itself is statutory, in force, and independent of the Rules. That is why the route is real. It is also discretionary throughout — "may", "in the opinion of the Registrar" — so it is a route to try, never a result to promise.

If someone quotes you a success rate for reviving an abandoned application, ask where the number comes from. No official statistic on this was capturable, and we do not publish one.

The examination deadline, precisely

This is the deadline that abandons the most applications, and the most widely published version of it is wrong.

Rule 33(4) gives one month from the date of receipt of the examination report. Not thirty days. One month and thirty days are different periods in seven months of the year, and the clock runs from receipt — not from the date printed on the report, and not from the day it appeared on the Registry's website.

The extension is one month and it is capped. Section 131 lets the Registrar extend a period on a request in Form TM-M; Rule 109(2) caps that extension at one month. The government fee is ₹1,000 physical or ₹900 e-filing. Two practical points: the request has to be made before the original period expires, and Section 131(2) provides that no appeal lies from an order on such a request.

There is no third month. Anyone offering to "get more time" beyond that is describing something the Rules do not contain.

Our objection reply guide covers what goes into the reply itself; the Section 9 and Section 11 deep dives cover the two grounds it usually answers.

The hearing deadline

If the reply does not satisfy the examiner, Rule 33(6) sets the matter down for a show-cause hearing. The proviso to Rule 115(1) permits it to be held by video conference, deemed held at the appropriate office. Hearing dates are published in the Registry's own cause lists, which is where a date should be confirmed rather than assumed.

Rule 33(7) is the sting: where the applicant neither files a reply nor appears, the application may be treated as abandoned. Note the conjunction. Turning up matters, and so does having replied.

What is left after the window closes — the honest list

In descending order of how much you keep:

1. Remedy on a Section 132 notice. If a notice issues and you remedy the default within the specified time, the application continues. You keep the filing date and everything that flows from it. This is by far the best outcome and it is not in your gift.

2. Ask for the grounds, then appeal. If a decision has been made against you, Rule 36(1) lets you request the grounds of the Registrar's decision on Form TM-M within thirty days of communication, at ₹1,000 physical or ₹900 e-filing. It matters procedurally: request it in time and the appeal period runs from the date the grounds are communicated; skip it and the clock runs from the original communication instead. Section 91(1) then allows an appeal to the High Court within three months of communication of the order, with Section 91(2) permitting a late appeal on sufficient cause shown.

A note on the forum, because the Rules are out of date on it. Rules 125 and 127 still name the Appellate Board. The Tribunals Reforms Act, 2021 abolished the IPAB and substituted "High Court" throughout the Act with effect from 4 April 2021; the Rules were not conformed. Where they conflict, the Act governs.

3. Seek a review of the Registrar's decision. Also Form TM-M, at ₹3,000 physical or ₹2,700 e-filing.

4. Refile. Always available, and it is the option that costs the most in the thing you cannot buy back. More on that below.

What refiling actually costs you

Not just the fee — though the fee comes again, per class and per mark, at ₹5,000 physical / ₹4,500 e-filing for an individual, startup or small enterprise and ₹10,000 / ₹9,000 for everyone else.

The real cost is the priority date. Section 23(1) registers an accepted mark as of the date of the making of the application. A fresh application takes a fresh date, and everything filed in the interval moves ahead of you. That is not a theoretical risk: under the Explanation to Section 11, an "earlier trade mark" includes an application under Section 18 bearing an earlier date of filing — so a competitor's unexamined, unopposed, still-pending application filed last month is already capable of being cited against your refiling.

If your original application had been on file for two years, refiling surrenders two years of seniority against every mark that appeared in that window.

And no, you do not get the fee back

The First Schedule charges the application fee "for each class and for each mark", and the Act contains exactly one refund route.

Section 133(2) applies where the Registrar had given affirmative preliminary advice on distinctiveness, the application was made within three months of that advice, and the Registrar then objected on the ground that the mark is not distinctive. In that case the applicant may withdraw and have the filing fee repaid — with the notice of withdrawal given within one month of the Rule 33(2) communication, under Rule 35.

That is a narrow, planned-in-advance route, not a general refund. (Preliminary advice itself is a Form TM-M filing under Section 133 and Rule 21, at ₹2,000 physical or ₹1,800 e-filing.) Everywhere else, a refused or abandoned application is money spent — which is the strongest practical argument for searching before you file.

Now the other half: a registration that was removed

Different chapter, different windows, and generally more forgiving.

Non-renewal

A registered mark runs for ten years from the date of the application — Section 23(1) dates registration back to the application, and Section 25(1) measures the term from there. Miss the renewal and two windows open in sequence:

Two things people get wrong on that table. The surcharge and restoration amounts are charged in addition to the renewal fee, not instead of it — the Schedule words both as "plus the renewal fee". And there is no concessional rate on renewal: the First Schedule splits its fee by applicant type on only two entries, the application and rule 34 expedited processing. An individual and a listed company renew at the same ₹9,000.

There is more detail in the trademark renewal process.

The one-year shadow under Section 26

Even after removal, the mark is not immediately free for anyone else. Section 26 provides that a mark removed for failure to pay the renewal fee is "nevertheless, for the purpose of any application for the registration of another trade mark during one year, next after the date of the removal, be deemed to be a trade mark already on the register" — unless the Registrar is satisfied either:

• (a) that there was no bona fide trade use of the removed mark during the two years immediately preceding its removal; or
• (b) that no deception or confusion would be likely.

Read that from both sides. If it is your mark that lapsed, Section 26 buys you a year in which nobody else can simply take the name — but it is a cushion, not a substitute for renewing. If it is someone else's lapsed mark blocking you, "it has lapsed" is not the answer inside that year; (a) or (b) is the answer, and it has to be argued on dates and facts.

Removal for non-use, and rectification

Two further routes exist against a live registration, both on Form TM-O at ₹3,000 physical / ₹2,700 e-filing.

Section 47(1)(b) — removal for non-use. The test is precise: "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 trade mark was registered and during which there was no bona fide use thereof." Note the two anchors — five years running from actual entry in the register, measured up to a date three months before the removal application. Section 47(1)(a) is the parallel ground where the mark was registered without any bona fide intention to use it.

Section 47(3) is the defence, and it is narrower than it looks: an applicant "shall not be entitled to rely" for the purposes of Section 47(1)(b) or 47(2) on non-use "which is shown to have been due to special circumstances in the trade, which includes restrictions on the use of the trade mark in India imposed by any law or regulation and not to any intention to abandon or not to use the trade mark." The Act's only illustration of "special circumstances in the trade" is a legal or regulatory restriction on use in India; the word is "includes", so the category is not closed, but nothing further is defined. And note what Section 47(3) does not protect against: it reaches Section 47(1)(b) and 47(2) only, not Section 47(1)(a).

Two provisions help a proprietor defending non-use. Section 56(1) deems application of a mark in India to goods for export, or in relation to services for use outside India, to constitute use of the mark "for any purpose for which such use is material under this Act". And Section 48(2) deems permitted use by a registered user to be use by the proprietor for the purposes of Section 47.

Section 57 is the general rectification power. On application "by any person aggrieved", made to either the Registrar or the High Court, an order may be made cancelling or varying a registration for contravention of a condition entered on the register (57(1)), or making, expunging or varying an entry made without sufficient cause, wrongly remaining, or defective (57(2)). Section 57(4) also lets the Registrar or the High Court act of its own motion — but only "after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard."

For simple errors in your own entry there is a lighter route: Section 58 lets the registered proprietor apply to the Registrar to correct an error in the name, address or description, enter a change of name or address, cancel the entry, or strike out goods or classes from the registration.

A worked example

An examination report dated 3 March is served and received on 11 March. Nothing is filed. In August the founder checks the status and finds "Abandoned".

Step one — establish which deadline ran. The reply was due 11 April: one month from receipt under Rule 33(4), not 2 April (the report date plus 30 days) and not 10 April. Because it is Rule 33(4), the abandonment was discretionary, not automatic.

Step two — check whether a Section 132 notice issued. If one did, and its specified time has not run out, remedying the default within that time is the whole answer and the application continues with its original date. If the notice was missed too, the position is weaker but the discretionary character of Rule 33(4) still makes representations worth making.

Step three — check whether an appealable order exists. If a formal refusal was communicated, the thirty-day window for the grounds under Rule 36(1) and the three-month appeal window under Section 91(1) are both running from communication, and the first of those is cheap at ₹900 and materially affects when the second starts.

Step four — price the alternative honestly. A refiling in two classes costs ₹9,000 in government fee for a small enterprise, ₹18,000 for anyone else — and surrenders the original filing date. If a competitor filed a similar mark in the intervening months, that competitor's application is now an "earlier trade mark" against the refiling. Sometimes the refiling is still the right call. It should be a decision, not a default.

What actually prevents this

Most abandoned applications are calendar failures, not legal ones.

• Diarise from receipt, not from the report date. Rule 33(4) runs from receipt, and the two are rarely the same day.
• Diarise the extension too. The Section 131 request has to be made before the original month expires; it is not a rescue after the fact.
• Watch the correspondence channel the Registry actually uses. Rule 31 abandons an application automatically a month after a formality notice that nobody opened.
• Treat the two-month counterstatement window as the hardest date in the whole timeline. Section 21(2) is the one place the Act does the abandoning itself.
• Confirm hearing dates against the published cause lists rather than relying on a single notification.
• Set the renewal reminder from the application date, not the certificate date. The ten years under Section 25(1) runs from the application, and a certificate issued in year three leaves seven years, not ten.

What to do next

1. Pull the status and the dates — which communication issued, when it was received, what period ran from it. The label alone tells you very little.
2. Identify the provision. Rule 31 and Section 21(2) are automatic; Rule 33(4), Rule 33(7) and Section 23(3) are discretionary.
3. If it is discretionary, pursue Section 132 — a notice, a remedy within the specified time, an opportunity of being heard. Available, not guaranteed.
4. If an order has been communicated, protect the appeal clock with a Rule 36(1) request for the grounds inside thirty days.
5. Price the refiling against the priority you would lose, not just against the fee.

If you want the status read properly before you spend anything, send it to us with the dates — that assessment is where the objection reply service starts, and it is the part that decides whether the rest is worth doing.

Sources and currency

Applies to: India. Trade Marks Act, 1999 (Act 47 of 1999) as consolidated on 1 June 2026, read with the Trade Marks Rules, 2017 as gazetted (G.S.R. 199(E), 6 March 2017). First Schedule fees as published by IP India and read on 19 August 2026.

Every section, rule, period and fee here was read from the bare Act on India Code and from the Trade Marks Rules, 2017 as gazetted. Whether a particular revival attempt succeeds turns on the Registrar's discretion, and nothing here predicts an outcome. In particular, the Section 132 route is described as available, never as guaranteed — the office practice recorded in the Draft Manual predates the 2017 Rules, and no current official statement of that practice was capturable.

• Trade Marks Act, 1999 (Act 47 of 1999), consolidated as on 1 June 2026 — Sections 20, 21, 22, 23, 25, 26, 46, 47, 57, 58, 91, 131, 132 and 133
• Trade Marks Rules, 2017 as gazetted — G.S.R. 199(E), Gazette of India Extraordinary No. 159, 6 March 2017. Rules 23, 31, 33, 34, 35, 36, 37, 42, 108, 109 and 115, and the First Schedule
• First Schedule to the Trade Marks Rules 2017 — forms and official fees as displayed by IP India
• Application and registration status (IP India e-status)
• Trade mark e-Register (IP India)
• IP India hearing cause lists
• A draft of Manual of Trade Marks Practice and Procedure (IP India), 10 March 2015 — practice guidance only, expressly a draft, written against the superseded 2002 Rules