Trademark Opposition Registration
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One of the first steps in the trademark registration process is the trademark objection stage, during which the trademark examiner objects to your application for a variety of reasons. The registrar does not just reject your claim; instead, they look for good arguments or justifications about the mark and its registerability. He offers the applicant the chance to justify why the particular trademark satisfies the requirements for obtaining a legitimate registration. Response to trademark objection.
Features of a Trademark Opposition
As far as Trademark Opposition in India is concerned, Section 21 of the Trademarks Act, 1999 says that “any person” who wants to oppose a trademark application can do so by filing a Trademark Opposition.
A trademark opposition must allege one or more grounds for challenging a trademark application. Most often, a trademark application is opposed by someone who owns prior rights in an identical or confusingly similar trademark. But, trademark applications can also be challenged on a number of other grounds. For instance, oppositions may be based on the opposer’s belief that the trademark is merely descriptive, deceptively misdescriptive, generic, functional, or likely to dilute the distinctive quality of the opposer’s famous trademark. In addition to alleging a valid ground for opposition, the opposer needs to show that it has standing to oppose the application. In other words, the opposer must allege in the notice of opposition that it has a direct and personal stake in the outcome of the proceeding and that it could be harmed by the registration of the trademark.
Shortly after a notice of opposition is filed, the Board will institute the opposition proceeding, assign it a proceeding number, and notify both parties of the schedule the opposition will follow. This schedule informs the parties of many important dates and deadlines by which certain actions must be taken. However, the schedule can be quite easily amended through mutual agreement between the parties and approval by the Board.
How To Register a Trademark Opposition?
Step 1: Getting information
Step 2: Application Preparation
Step 3: Application Filing
Step 4: Government Processing
Minimum Documents Required
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Under Indian law, ‘any person’ can file the notice of opposition. This includes individuals, companies, partnership firms and trusts. Two or more persons can be joined as opponents in the same notice of opposition provided the issues are the same.
The notice of opposition can be filed within three months, extendable by one month (3+1) of the date the Trade Marks Journal is made available to the public. If the notice of opposition is filed after three months but before the expiry of four months, then it must be accompanied by a request for an extension of time of one month, giving sufficient reasons for the delay in filing the opposition.
The notice of opposition should be filed at the trade mark registry where the application for the conflicting mark has been filed. For instance, if the application is filed at the Delhi office of the Trade Mark Registry, then the opposition proceedings would be initiated in Delhi only.
Once the Notice of Opposition is filed, the Registrar takes it on record and serves a copy on the Applicant (with an official intimation to the Opponent) inviting their attention to file a Counter Statement. The Applicant is required to file the Counter Statement within two months of the receipt of the Notice of Opposition. If the Applicant fails to file the Counter Statement within the stipulated time, the Applicant is deemed to have abandoned his application.
The Opponent is required to adduce evidence by way of affidavit in support of the opposition within two months of receipt of the Counter Statement. The period is extendable by one month. The Opponent is required to deliver to the Applicant a copy of any evidence filed at the Registry and tell the Registrar that he has done so. Similarly, the Applicant is required to file any evidence in support of the application within two months of the receipt (by the Applicant) of the copy of the affidavit/evidence filed by the Opponent. This period is also extendable by one month.
Thereafter, the Opponent is required to file evidence in reply within one month of the receipt of the evidence filed by the Applicant. The said period is extendable by one month.
If I am not able to file the evidence within the time frame, are there provisions to file evidence at a later stage?
If the evidence is not filed within the prescribed time it can be filed later as ‘further evidence’. However this needs to be accompanied with an interlocutory petition explaining the reasons for delay in filing of the said evidence and asking for Registrar’s permission to condone the delay.
Once the evidence is filed by both the parties, the matter is listed for hearing at the Trade Marks Registry enabling the parties to submit oral submissions. The Registrar must give prior notice to the parties informing them of the hearing. Within 14 days from receipt of the first notice, the parties must notify the Registrar indicating their intention to attend the hearing.
The Registrar after examining the evidence and hearing both the parties passes a written order. If any party is aggrieved by the order, he/she can file an appeal at the Intellectual Property Appellate Board (IPAB) within three months of its receipt.
Considering the tremendous backlog at the Trade Mark s Registry, it would be difficult to estimate the exact time period for conclusion of the opposition proceeding. Roughly, it takes 3-4 years for a contested opposition to be decided.
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