FILING OF EVIDENCE BY WAY OF AFFIDAVIT IN TRADEMARK

A trademark may be registered in India under the Trademark Act, 1999. To register a trademark, the owner must submit an application to the Registrar of Trademarks. The Registrar will publish a trademark advertisement in the trademark journal following receipt of the registration application.

Anyone may submit an opposition to the trademark registration that has been published in the Trademark Journal. The trademark registration application is filed with the Registry of Trademarks, where the opposition is to be filed. The trademark registry will hold a hearing to reach a decision if it receives any opposition to the trademark.

The trademark opposition process is outlined in the Trademark Act of 1999 and the Trademark Rules of 2017.

Trademark Opposition

According to Section 21 of the Trademarks Act of 1999, anyone may submit a notice of opposition to the Registrar. This covers companies, people, trusts, and partnership businesses. So, any third party that feels wronged can object to the registration of a trademark.

Trademark Opposition Notice

Within four months of the date the registration application was published in the trademark journal, anybody may submit a trademark opposition to the Registrar by submitting a notification in Form TM-O and paying applicable fees.

Notice of Trademark Opposition Counterstatement

Within two months of receiving a copy of the notice of opposition, the applicant must submit a Form TM-O counterstatement to the Registrar outlining their facts in response to the notice of objection. Within two months of receiving the counterstatement, the Registrar will serve a copy of it to the opposing party.

Filing evidence by the way of an Affidavit

If the applicant receives such a warning, he has the right to offer the Examiner supporting documentation for the first application. The Trademark Act specifies the process for submitting proof. An affidavit should be used to submit the applicant’s evidence request.

On receipt by the applicant of copies of affidavits in support of opposition or of the indication that the opponent does not wish to adduce any evidence in support of his opposition, it must be done within two months or within such further period not exceeding one month in aggregate thereafter as the Registrar may on request allow.

The applicant must inform the Registrar of any affidavit-based evidence he wishes to present in support of his application and provide copies to the opposing party. Alternatively, the applicant may inform both the Registrar and the opposing party that he does not wish to present any evidence and instead intends to rely on the information provided in the opposing party’s counterstatement and/or on the evidence previously left by him in connection with the application at hand.

If the applicant relies on any of his earlier application-related evidence, he must submit copies of it to the opposition. However, the applicant is not the only one who can offer additional proof. The Trademark Act permits the opposition party to submit evidence in response and to submit evidence in support of opposition.

The respondent may leave evidence by affidavit in reply with the Registrar and shall deliver copies thereof to the applicant within one month of the opponent receiving copies of the applicant’s affidavit or within such further period after that, not exceeding one month in aggregate, as the Registrar may on request in Form TM-56 allow. This testimony must only address issues that are strictly in response.

The opponent must either leave with the Registrar any affidavit-based evidence he may wish to present in support of his opposition within two months of receiving a copy of the counter statement or within any additional time-period, not to exceed one month overall, that the Registrar may grant upon request. Alternatively, the opponent may notify the Registrar and the applicant in writing that he does not wish to present any affidavit-based evidence in support of his opposition. Any copies of evidence that he leaves with the Registrar pursuant to this sub-rule shall be delivered to the applicant, and he shall notify the Registrar in writing of such delivery.

An opponent is said to have abandoned his opposition if he does not act within the time frame specified therein.

Filing an affidavit has specific requirements, such as the following:

  • The affidavit must be written in the first person, have paragraphs that are numbered consecutively, and, to the extent possible, be limited to a single topic per paragraph.
  • Every affidavit must contain a description of the maker, address, name, contact information, and a statement of who the document is filed on behalf of.
  • The person who takes an affidavit must be qualified to receive evidence. In addition, he or she must state the date and location of the affidavit’s taking, affix their own seal or the seal of the court to which they are affiliated, and sign their name and description at the conclusion.
  • Every affidavit submitted to the Registrar in connection with any actions brought under the Trademark Act or the rules must be properly stamped in accordance with the laws in effect at the time.

Conclusion

The application moves on to registration after overcoming the aforementioned obstacles. If there hasn’t been any opposition to the trademark’s registration during the four-month period of advertisement and publication, the trademark will receive an automatically created registration certificate within a week. After the registration is finished, it is valid for ten years, at which point it must be renewed within a set frame of time.

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