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A Trademark Opposition is an administrative proceeding before the Registrar of the trademark, wherein one party seeks to prevent another from registering a trademark. India has a trademark law based on common law principles. Indian trademark law is developed and provided with enough checks and securities to maintain the uniqueness of the marks registered in the registry and to protect the creator’s rights from getting infringed. The Trademark Act of 1999 provides for three-tier security for the trademark registration. Firstly, in the registration office itself where the official checks the mark and asses its uniqueness and only approve if he doesn’t find a similar one already registered in the existing database of the registry.
ComplianceIndia helps you with the simplest way to file a Trademark Opposition.
Advantages of Trademark Opposition
Prerequisites of Trademark Opposition
The grounds and reasons available for filing a TM Opposition in India will depend on the facts and circumstances of each and every case.
- The trademark is similar or identical to an earlier or existing registered trademark.
- The mark is not of distinctive character.
- Application for the trademark is made with bad faith.
- The mark is descriptive in nature.
- The trademark is likely to deceive the public or cause confusion.
- The mark contains matters that are likely to hurt religious feelings of any class or section of people.
- The trademark is prohibited under the Emblem and Names Act, 1950
- The mark is contrary to the law or is prevented by law
Grounds for Applying for Trademark Opposition
- Filling a Notice of opposition: Any person who wishes to file a notice is required to mention important specifics concerning, details of the opposed application, details of the opposing party and grounds for opposition. Such notice must be filed within 4 months of the advertisement of the mark. If the Registry is satisfied with the notice, it will then serve a copy to the concerned applicant. The applicant has 2 months from date of receipt of the notice to file a counterstatement or else the Registry may deem the application of the trademark as abandoned.
- Evidence in Support of Opposition: Rule 45 of The Trademark Rules, 2017, states that the opposing party has to produce evidence to support its objection within 2 months (extendable by one month) of receiving the copy of the counter-statement filed by the applicant. The party also has the option of refraining from producing any evidence and relying solely on the opposition notice.
- Evidence in Support of Application: after the opposing party files evidence in support of his objections, the applicant is also allowed a time of two months to produce evidence in his favour. He also has an option of not providing any evidence and to rely only on the counter statement as provided in Rule 46, The Trademark Rules, 2017.
- Evidence in reply: Under Rule 47, The Trademark Rules, 2017, the Opponent is given one additional month (extendable by 1 month) to file Evidence in response to the Applicant’s evidence.
- Hearing of the parties: After the evidence filing stage is over the Registrar shall give the notice to the parties stating the date of hearing, which shall be at least one month after the date of the first notice. Hearing is based on the notice of opposition, counter-statement, and evidence filed. The parties are required to notify the Registrar about their intention to appear for the hearing. There’s an option of adjourning the hearing also, and the request for it can be made under FORM TM, at least 3 days prior to the hearing, however one is allowed a maximum of two times only to request for an adjournment. Finally, the matter is heard by the Registrar and decided upon merits. If any of the party doesn’t show up for the hearing the Registrar will rule against his favor.
- Filing of Appeal: The Registrar shall upon hearing both the parties and reviewing the evidence submitted decides whether the opposition succeeds at establishing their objection or failed to do so, and in turn determines whether the trademark shall be registered or not thereby bringing the opposition proceeding to a conclusion. However, the party aggrieved by the Registrar’s decision may challenge the same by filing an appeal before the Intellectual Property Appellate Board.
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Documents Required for filing Trademark Opposition
Our charges for application of Trademark Opposition starts from Rs. 1,999/-.
Frequently Asked Questions
1. What is a notice of opposition?
Any individual who thinks his/her brand name or reputation of the company may be damaged in any way by the registration of a certain mark may choose to oppose such registration by filing the notice of opposition.
2. What is the time period for filing the Notice of Opposition?
The notice of opposition can be filed within three months, extendable by one month (3+1) from the date on which the trademark was published in the Trade Marks Journal. 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 by one month, giving sufficient reasons for the delay in filing the opposition.
3. Who can file the Notice of Opposition?
In India, anyone can file for the Trademark Opposition. Usually, it is initiated by a person who is the owner of an earlier trademark or a mark that deals with similar goods/services; or that has a possibility of creating confusion or harm an existing mark can file an opposition, even if its own mark is not registered.
4. My mark is not registered in India; can I file an opposition based on my pending application and use?
Through a common law of rights of passing off, one can file an opposition even if the Trademark application is pending or already in use if not registered. This law prevents any person from selling his goods/services as that of another and benefiting from it.
5. What is the next stage once I file the Notice of Opposition?
The next step is taken by the Registry. The registrar serves the copy to the opponent so that they can file a counter statement. This has to be filed within 2 months of the receipt of the notice of opposition. If it is not filed it is believed to be abandoned.
6. What the plaintiff must establish in a passing off action?
In a case where the notice of opposition is filed on the use of the mark, it is essential to show that the disputed mark or logo has become distinctive and is recognized that of the plaintiff’s goods and services. Hence, any mark that can cause confusion among the consumers cannot be registered as it would harm the already existing users’ business.
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