Section 26 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 26 answers a narrow but practical question: what happens to a trade mark that has dropped off the register because the renewal fee was not paid? For one year after removal, the removed mark is still treated as a trade mark already on the register when someone else applies to register another mark, unless it is shown that the old mark was not used or that confusion is not likely. A trademark renewal service exists to keep you from reaching this point.
Where a mark has been removed for failure to pay the renewal fee, then for one year after the date of removal, in any application to register another trade mark, it is deemed to be a trade mark already on the register. That holds unless the Registrar or the High Court, as the case may be, is satisfied either that there was no bona fide trade use during the two years before removal, or that no deception or confusion would be likely.
A note on the wording
The printed section says "unless the tribunal is satisfied". The Tribunals Reforms Act, 2021, in the entry for section 26, substitutes for the word "tribunal" the words "Registrar or the High Court, as the case may be". Before the Tribunals Reforms Act, 2021 this read "tribunal". This article uses the current wording.
The text, broken into parts
"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 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."
| Element | Text | Meaning |
|---|---|---|
| Trigger | Removal from the register for failure to pay the renewal fee | Covers removal under section 25 for non-payment |
| Period | One year next after the date of the removal | Counted from the date of removal, not from expiry |
| Effect | The removed mark is "deemed to be a trade mark already on the register" | It can still stand in the way of a later applicant |
| Purpose | "For the purpose of any application for the registration of another trade mark" | The deeming operates in other people's applications |
| Escape (a) | No bona fide trade use of the removed mark during the two years immediately preceding its removal | The old mark was not really in use |
| Escape (b) | No deception or confusion would be likely from the new mark's use, by reason of any previous use of the removed mark | The public would not be misled |
| Decision-maker | The Registrar or the High Court, as the case may be | Satisfaction is theirs to form |
Who is affected, and how
The former proprietor
If your registration was removed because the renewal fee was not paid, section 26 helps you for one year: the removed mark can still be treated as on the register against a later applicant. It does not restore the registration, and the section does not give you the right to use the mark as a registered proprietor. Restoration is a separate route under section 25(4): after six months and within one year from expiry, on application and fee, if the Registrar is satisfied it is just. If you want the mark back, see renewal, fees and late restoration.
A later applicant
If you apply for a mark that is close to one removed within the last year, the removed mark may be treated as on the register when your application is examined. If you want to proceed, you would show either of the two escapes: that there was no bona fide trade use of the removed mark in the two years immediately before removal, or that no deception or confusion is likely.
Example. Tara Naturals' registration for "TARA GLOW" is removed on 10 June for non-payment of the renewal fee. On 15 October the same year, Mehra Cosmetics applies for "TARA GLOWE" for similar goods. Within one year of removal, "TARA GLOW" is deemed to be on the register for the purpose of Mehra's application, unless Mehra satisfies the Registrar or the High Court, as the case may be, that Tara Naturals had made no bona fide trade use of it in the two years before 10 June, or that no deception or confusion would be likely.
What the section does not say
- It does not say who bears the burden. The words are "unless is satisfied". An applicant who wants to avoid the deeming would put forward material on (a) or (b).
- It does not define bona fide trade use. The text speaks only of "bona fide trade use".
- It does not state a fee or form. Fees and forms are for the Trade Marks Rules, 2017.
- It does not cover removal for other reasons. The trigger is failure to pay the renewal fee. Removal for non-use is a different matter; see section 47 in this series.
- It does not say what happens after one year. The deeming rule is for "during one year, next after the date of the removal".
How the pieces fit together
| Section | Question it answers |
|---|---|
| 25(3) | When may the Registrar remove for non-renewal, and what is the six-month surcharge route? |
| 25(4) | Can the removed mark be restored, and when? |
| 26 | For one year after removal, can the old mark still block someone else's application? |
Practical points
- Check the register before you file. If a close mark was recently removed, find out why and when. A removal for non-payment keeps it alive for objection purposes for a year.
- Gather facts on use. An applicant who wants to overcome the deeming needs facts on non-use in the two years before removal, or on the absence of likely confusion.
- Count from the removal date. The one year runs from the date of removal.
- If you were removed, move quickly. Restoration under section 25(4) has its own window.
Need help with a lapsed registration?
If your mark has been removed for non-payment of the renewal fee, the timing is critical: the restoration window and the one-year period in section 26 both run from dates you can check today. Our trademark renewal team can review your dates and file for restoration where the Act allows.
Key takeaways
- Section 26 applies where a mark was removed from the register for failure to pay the renewal fee.
- For one year after removal, it is deemed to be a trade mark already on the register for the purpose of another application.
- Escapes: no bona fide trade use in the two years before removal, or no likelihood of deception or confusion.
- The decision-maker is the Registrar or the High Court, as the case may be; before the Tribunals Reforms Act, 2021 this read "tribunal".
- Restoration of the removed mark is a separate right under section 25(4).
Read next
- Section 25: duration, renewal, removal and restoration
- Section 27: unregistered trade marks and passing off
- Trademark restoration after removal for non-use
- Trademark renewal: process, fees and late restoration
Disclaimer: Based on the Trade Marks Act, 1999 as amended by the Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023, as consulted on 1 October 2026. Forms, fees and procedure are set by the Trade Marks Rules, 2017 as amended from time to time. This article is general information, not legal advice; check the official text before acting.