Introduction
In India, trademark registration is based on prior use and first claim. It means that an individual who applies for the brand name first will be given priority for trademark registration.
Claiming a user date in the Trademark Registration application is preferable to avoid trademark infringement and protect your trademark.
When two identical trademark applications are filed and compared, the one who claims an earlier date of use shall have a stronger case than the one who claims usage on a later date or has applied on a proposed to-be-used basis. Hence, the user date plays a vital role in acquiring absolute rights in Trademark registration.
In this blog, we will understand how “user date” plays a significant role in the registration of a trademark and how to claim it.
What is “User Date” in Registration of Trademark?
User Data is the date from which the user of the brand name has started using the tradename whether with or without registration.
- In relation to goods, the user date will be the date on which goods were first sold or transported under the said brand name.
- In relation to services, the user date will be the date on which the services were first provided under the said brand name.
Therefore, to claim priority in usage over identical/similar brand names, the applicant must provide user date in case usage is before the application date and provide evidence for the same.
Under Indian Trade Marks Act, 1999, the online trademark application can be made on any of the two bases:
- Claiming User Date
- As proposed to be used
What Proofs Can Support the Prior Use Claim?
When the applicant in his application for trademark registration claims a specific date from which the applied Trademark has been put to use, then appropriate documentation as proof of use is to be provided along with the Trademark application.
The documents which contain the brand name and date which is circulated in public, or any other document which proves the commercial use of the brand name, may be used as proof for this purpose.
Following are the vital documents to be provided along with the Trademark application to claim the user date:
User Affidavit
The User Affidavit is a mandatory document that must be attached along with the trademark application. In the affidavit, the applicant, referred to as the deponent, declares that the date claimed and the facts disclosed regarding the application and use of the brand name are correct. The affidavit must be notarized after paying the applicable stamp duty. The user affidavit must be submitted along with any of the other proofs as listed in the below-mentioned points.
Invoices and Bills
Invoices issued to a customer which contain the record of goods sold or services provided under the name of the applied brand name can be provided to claim the usage. Further, bills received for any expenses such as the availing of new services linked with trade, purchase of raw materials, bills for production of banners & brochures, or any kind of other advertisement expenses etc., can be submitted. Invoices and bills prove the commercial use of the brand name so the applicant can provide at least four-five invoices in each year from the user date claimed.
Government Registration Certificates
Registration certificates issued by the Government of India, a state, or any other authority can be used to support an application because they validate the applicant’s business or commercial transactions.
Virtual presence
Many businesses have their presence on the internet or social media portals. Any registration obtained for the domain or any certificate received can also be presented there. As many businesses work only through social media channels, the copy of the image of the post or promotions can also be counted to support the claim.
Public disclosure document
Any announcements, advertisements, or declarations made to newspapers or other public platforms with a wide reach are also valid proof to establish this claim. However, the publication should include the publication date as well as the brand name.
Advantages of claiming Usage
Acquired distinctiveness
A trademark that is not inherently distinctive will not qualify for registration. However, if the applicant provides its usage by giving evidence of such usage, that the consumers in the market associate the trademark exclusively with the applicant’s commercial source then the trademark may be accepted for registration on the basis of the distinctiveness acquired over a period of time.
Dealing with Objections and proceedings
The first usage is an effective ground for asserting a right to protection. During any raised objections or third-party opposition, the prior user will have the upper hand over the other. If the user date is not specified in the application, the applicant cannot claim it during the proceedings.
Prior usage and passing off
The passing off is considered as the right that protects the unregistered marks even against the registered marks. According to the Act, the prior user has the right to sue other users, including registered users, who use similar trademarks or brand names. However, the prior user must provide proof of the said user date of the said brand.
Conclusion
Trademark registration has its own advantages. It is always preferable to claim a user date in the trademark registration application To avoid trademark infringement and adequately protect your trademark. A pre-use claim adds value to the goodwill that has been built over time and makes applicants more confident in their trademark. As a result, a valid claim application must be accompanied by an affidavit for such use, as well as supporting documents.
Registration Arena is the expert hub that can help you with the registration of your trademark, copyright, or patent. For more details call us at 8600544411 / 8600544422
