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Trademark Opposition Filing in India | Trademark Opposition Filing2022-09-26T20:22:37+05:30

Trademark Opposition Filing in India

Trademark opposition means an objection filed by a third party or public against any trademark after it has been accepted by the Trademark Examiner and published in Trademarks Journal in order to prevent it from being registered.

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    Trademark Opposition Filing in India

    Once the Trademark application is filed with the Registrar of Trademarks, it passes through various stages. In the initial stage, the Trademark Examiner examines the trademark application and checks whether the trademark qualifies for registration as per the Trademarks Act and Rules. If the examiner is satisfied that the trademark is eligible for registration, then the applied trademark is published in Trademark Journal for a period of 4 months. Any person who is of the view that the applied trademark does not qualify for a valid registration may raise opposition during this period of 4 months.

    The main purpose behind publishing a Trademark in the Journal is to enable any third party to view the trademark and file opposition against the registration of the applied mark. Trademark opposition is generally considered by a person who is of the view that his or her Intellectual Property Rights are violated due to the registration of such applied trademark.

    Who can oppose a Trademark Application

    • According to Section 21 of the Trademarks Act 1999, ‘any person’ can file the Notice of Trademark opposition within a period of 4 months from the date of publication of trademark in the journal.
    • The person filing opposition may be a competitor of the applicant, customer or client, member of the general public, society, trust, NGO, etc.
    • A person who was using the trademark, before the applicant, but has not yet registered the trademark. Also, there is no requirement that the person should a prior registered trademark owner.
    • However, it is important to note that trademark opposition filing should be for a bona fide purpose as the opponent and applicant is required to submit evidence in support of their claims at a later stage.

    Benefits of Trademark Opposition Filing in India

    • Protects your brand against conflicting mark

      In a case, where a person has applied a trademark which is similar and conflicting to your brand name and is likely to cause confusion after registration, then filing a trademark opposition may help your business against the possible confusion.

    • Protection against violation of public interest

      Trademark opposition provides an option to the general public to oppose the registration of any applied trademark if such brand name is against the public interest.

    • Protection of goodwill and reputation

      Trademark Opposition helps to eliminate fraudulent and dishonest applications filed with an intention to misappropriate the goodwill and reputation of the opponent.

    Grounds for Trademark Opposition Filing in India

    • The applied trademark is confusing/conflicting with other trademarks.

    • The applied trademark does not contain any distinctive character.

    • The applied trademark is descriptive in nature.

    • The mark is likely to hurt the feelings of the people under any basis like religion, race, etc.

    • The mark is likely to deceive the people.

    • The mark is contrary and is prevented by the law.

    • Application for the trademark is made with bad faith.

    • If the trademark is prohibited under the Emblem and Names Act of 1950.

    What Is Included In Our Trademark Opposition Filing in India package?

    • Consultation and Advisory on the Opposition of trademark

    • Preparation of Notice of Opposition/Counter-Statement by our Expert Team

    • Filing of Notice of Opposition/Counter-Statement with Registry

    • Timely updating the status of Trademark Opposition

    Process of Trademark Opposition Filing in India

    • Filing of the Notice of Opposition by Opponent

      The Notice of Opposition should be filed within 4 months from the date of Publication of applied mark in the Trademark Journal. The Notice has to be filled through the Form TM-O along with the required fee. The application first reaches the Registry, which checks whether all the requirements have been fulfilled or not. If all the requirements are met, the opposition notice is forwarded to the applicant of the trademark and his agent/attorney (if any).

    • Filing of Counter Statement by Applicant/Owner

      Upon receiving of the Notice of Opposition, the Applicant of the trademark is supposed to file the counter statement to the opposition and submit the same to the Registry within 2 (two) months since the opposition was filled. This again reaches the Registry which makes sure if all the necessary requirements have been met, if yes, the counter statement is forwarded to the opposition party. If the applicant of trademark fails to file the counter statement within 2 (two) months, the application stands abandoned.

    • Submission of Evidence in support of Opposition

      After receiving the counter-statement, the opponent now has 2 (two) months for submitting an affidavit of evidence in support to the grounds of opposition under Rule 45. If the opponent fails to do so within 2 (two) months, the opposition stands abandoned.

    • Submission of evidence in support of Application and Counter Statement

      Now within 2 (two) months of receiving the evidence of opposition, the applicant is now supposed to submit the evidence in support of his counter statement under Rule 46.

    • Submission of Evidence in Reply

      After receiving the evidence by the applicant under Rule 46, the opponent gets one more chance to submit any type of evidence in support of his opposition application within a period of 1 (one) month.

    • Hearing by Registrar

      After receiving notice of opposition, counter statement, and evidence, the Registrar calls for both the parties for a hearing at the Trademark Registry. All the parties have to respond to the notice of hearing and notify the Registrar about their intention to attend the hearing. The Registrar decides whether the registration of a trademark should be granted or not.

    Documents Required for Trademark Opposition Filing in India process

    • Conflicting Trademark name and application number

    • PAN Card of Applicant

    • Address Proof of Applicant (Anyone) – Aadhaar Card/Passport/Driving License

    • Certificate of Incorporation or Registration – In case of Company/OPC/Partnership Firm/LLP/Others

    • Power of Attorney/Authorization letter

    FAQ

    How much time is needed to prepare a notice of trademark opposition or counter statement?2021-09-22T12:49:02+05:30

    On an average, it takes 15 to 20 days to prepare and file a notice of trademark opposition or counter statement.

    My trademark is not registered in India, can I file an opposition against a trademark that is similar to my brand name?2021-09-05T12:12:11+05:30

    Yes, you can file an opposition against such a trademark even if you’re trademark is not registered in India.

    What is the difference between Notice of Opposition and Counter Statement?2021-09-16T15:30:18+05:30

    Notice of opposition is filed by the opponent against the registration of a trademark of an applicant which is published in Trademark Journal and it shall contain details of the opposing parties, details of opposing trademark, and the grounds of opposition. On the other hand, the counter statement is filed by the applicant in response to the notice of opposition which shall contain clause wise counter statement for all the grounds of opposition.

    How long does it take for a trademark to be opposed after filing a notice of opposition by the opponent?2021-09-05T12:11:07+05:30

    Once the notice of opposition is filed, the Registrar of Trademarks shall mark the status of trademark opposed immediately.

    Can a notice of opposition be filed after 4 months of advertisement?2021-09-05T12:10:45+05:30

    No, the time limit for filing notice of opposition for a trademark is 4 months from the date of publication of the mark in the journal. If no opposition is received for registration of trademark then Registrar shall register such trademark and issue a certificate of registration.

    What will happen if I don’t reply to the notice of opposition by the counter statement?2021-09-05T12:08:50+05:30

    If the applicant does not reply to notice of opposition via counter statement within the prescribed timeline, then the applicant will be deemed to be admitting the allegation of the opponent, and the trademark application shall be abandoned.

    Can hearing before Registrar be adjourned?2021-09-05T12:03:16+05:30

    Yes, any party may request an adjournment of the hearing with a reasonable cause at least 3 days before the date of hearing, and the Registrar, if he thinks fit to do so, he may adjourn the hearing and intimate the parties. However, parties shall not be given more than two adjournments and each adjournment shall not be for more than thirty days.

    What to do if my trademark is also rejected by Registrar during the Hearing?2021-09-04T20:51:50+05:30

    In that case, an applicant can file an appeal before the Intellectual Property Appellate Board (IPAB).

    My trademark is opposed by a competitor, what will happen if I don’t file a counter statement and instead file a new trademark application?2021-09-16T15:32:44+05:30

    If the counter statement is not filed by the applicant within the prescribed time, then the applied trademark shall be abandoned by the Registrar of Trademarks and the applicant shall lose an opportunity to register his trademark. If applicant files for a new mark there is no surety that the trademark would be accepted, therefore, it is advisable to file a counter statement if the mark is distinctive or not similar to any mark.

    Can the Registrar of Trademark put any conditions, amendments, modifications, or limitations before accepting a trademark?2021-09-04T20:48:33+05:30

    Yes, a Registrar of Trademark may accept a Trademark, subject to such conditions, amendments, modifications, or limitations as he may think fit to impose.

    What if a similar name is already registered, will I get a trademark for a similar name?2021-09-04T20:47:10+05:30

    As per the Trademark law, if you are using a certain brand name for many years, you can still be granted registration keeping in mind the goodwill attached with your name over the years. In other cases, it is difficult to get the registration of your brand name.

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