Chapter III - Procedure for and Duration of Registration
Section 26
Section 26: Recently removed marks and new applications
A mark removed for non-payment of renewal fees may still count as on the register for new applications during the following year.
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Need advice on Section 26?
This article is for general information. Refer to the Trade Marks Act, 1999 official text for the official provisions. If you need professional advice for your situation, contact Bizeneed.
Statutory text
Bare law
Where a trade mark has been removed from the register for failure to pay the fee for renewal, it shall 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 or the High Court, as the case may be is satisfied either—
(a) that there has been no bona fide trade use of the trade mark which has been removed during the two years immediately preceding its removal; or
(b) that no deception or confusion would be likely to arise from the use of the trade mark which is the subject of the application for registration by reason of any previous use of the trade mark which has been removed.
Rule and business relevance
The deeming rule has two alternative exceptions: no bona fide trade use in the two years before removal, or absence of likely deception or confusion from the earlier use. The Registrar or High Court must be satisfied as stated.
Limits and related provisions
This is not automatic restoration or a fresh term of registration for the removed mark. Distinguish its effect on another application from renewal and restoration under section 25.
Hypothetical business example
Hypothetical example: A business finds an apparently expired mark and plans a similar application soon after removal. It checks the one-year rule and whether an exception can be established.
Practical decision flow
Confirm removal was for failure to pay renewal fees and its date.
Check whether the new application falls within the following year.
Assess evidence of preceding use and deception or confusion.
Applying the Act and current procedure
Read the statutory rule together with the applicable Trade Marks Rules, current Registry directions and the facts of the particular mark. Forms, fees and procedural requirements should be checked against their current official source before filing.
Practical checklist
Do
- Confirm removal was for failure to pay renewal fees and its date.
- Check whether the new application falls within the following year.
- Assess evidence of preceding use and deception or confusion.
Avoid
- This is not automatic restoration or a fresh term of registration for the removed mark. Distinguish its effect on another application from renewal and restoration under section 25.
Glossary
- Deemed registration
- The limited treatment of the removed mark as still registered for the stated application purpose.
- Bona fide trade use
- The genuine trade use relevant to the two-year exception.
Frequently asked questions
Does removal always free the mark immediately?
No. The limited one-year deeming rule may apply.
Does this itself restore registration?
No. Restoration is a different issue under section 25.
Must both exceptions be proved?
The section states alternative grounds on which the relevant authority may be satisfied.
Need help applying this provision to your situation?
Contact BizeneedLast updated 10 October 2026