Overview - Trademark Opposition Process in India
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Trademark Opposition
Trademark Opposition means an objection raised by a third party on the application for registration of a trademark. The purpose of opposing a trademark registration is to protect the right of the existing registered holder from registering a similar or deceptively similar trademark.
Any interested third party i.e an individual or a company or any person can initiate the process of trademark opposition, within a period of 4 months from the date for the advertisement of an application made in the Trademark Journal. The opposition of trademark registration can be initiated on various grounds.
As per Sec 21 of Trademarks Act, 1999 any person can file the opposition of trademark within the prescribed time limit. If the opposition is not made within the prescribed time, the same cannot be made later and the Registrar will proceed to do the registration of a trademark. As per Sec 21 of Trademarks Act, 1999 any person can file the opposition of trademark within the prescribed time limit.
Grounds of Opposition:
An opposition to trademark registration can be made on the following grounds:
- - The trademark is similar or identical to an existing registered trademark.
- - The mark is not of distinctive character.
- - The application is made in bad faith or immoral.
- - The mark is used to confuse or deceive the common people.
- - The trademark is descriptive in nature.
- - The mark contains matters that are likely to hurt religious feelings of the people.
- - The mark is used to prevent the law or is contrary to the law.
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Trademark Opposition Process - Requirements
Publication of Trademark Application
The Trademark application that is proposed to be opposed by the interested party (Opponent) must have accepted by the Registrar and published in the Trademark Journal before filing the Notice of Opposition
Issue of Notice of Opposition (Form TM-O)
A Notice of Opposition (Form TM-O) must be submitted to the Registrar of Trademark within 4 months of publication of advertisement in the Trademark Journal.
Trademark Opposition Process in India
Stage-1 : Notice of Opposition (Rule 42)
Anyone who is interested to oppose the Trademark Registration has to issue a Notice of Opposition within 4 months from the date of publication of advertisement in the trademark journal in Form TM-O along with the prescribed fees. The notice should contain details of the opposing party, grounds of the opposition of trademark registration and details of the application against which the opposition is being raised. On receipt of the notice, the Registrar shall issue a notice to the trademark applicant.
Stage-2: Reply Notice of Opposition or Counter Statement (Rule 44)
The Trademark applicant is required to send a counterstatement in form TM-O within 2 months from receipt of the copy of notice from the Registrar and shall set out what facts, if any alleged in the notice of opposition, are admitted by the applicant. A copy of the counterstatement shall be provided by the Registrar to the opponent within 2 months from receipt of the same from the applicant. In case of failure to file the counterstatement by the applicant within the prescribed time, the application of trademark registration will be deemed to be abandoned.
Stage-3: Evidence in support of Opposition by Opponent (Rule 45)
The opponent is required to file evidence supporting the opposition by way of an affidavit within 2 months from receipt of counterstatement. If the opponent does not desire to adduce any evidence in support of his opposition but intends to rely on the facts stated in the notice of opposition, he shall intimate the Registrar and the applicant in writing, otherwise the notice of opponent shall be deemed to be abandoned.
Stage-4: Evidence in support of Application by Applicant (Rule 46)
The trademark applicant is also required to provide evidence in support of the application to the Registrar within 2 months from the receipt of evidence/intimation filed by the opponent. If the applicant does not desire to adduce any evidence in support of the application but intends to rely on the facts stated in the counterstatement, he shall intimate the Registrar and the opponent in writing, otherwise the application shall be deemed to be abandoned.
Stage-5: Evidence in Reply by Opponent (Rule 47)
The opponent will further be provided an opportunity to provide any further evidence within one month from receipt of evidence from the applicant. In case the document is in a language other than Hindi or English the same shall be translated in Hindi or English and submitted before the Registrar and a copy thereof to be provided to the opposite party.
Stage-6: Hearing of Opposition
After the submission of evidence from both the parties, the Registrar shall give notice to the parties of the first date of hearing. The date of hearing shall be for a date at least one month after the date of the first notice. The Registrar will give an equal opportunity of being heard to both the parties. The either party may make a request for adjournment of the hearing with a reasonable cause in form TM-M along with the prescribed fee, at least 3 days before the date of hearing. A maximum of 2 adjournments can be requested by the parties and the duration of each adjournment shall be restricted to be not more than 30 days.
Adjournment of Hearing
Any party can apply for adjournment of hearing by making an application in Form TM -M by payment of Rs.900.00. If found satidacgoty, the registrar shall postpone the hearing to a next available date.
Order by the Registrar of Trademark on Notice of Opposition
The Registrar shall consider written arguments if submitted by a party to the proceeding. After hearing of both the parties, the decision of the Registrar shall be communicated to the parties in writing. If the applicant or opponent is not present at the adjourned date of hearing and at the time mentioned in the notice, the application or opposition may be treated as abandoned and the Registrar will proceed with the matter accordingly.
Documents Required
Issue of Notice of Opposition (Form TM-O)
Trademark Opposition Process in India
Notice of Opposition (Rule 42)
Reply Notice of Opposition or Counter Statement (Rule 44)
Evidence in support of Opposition by Opponent (Rule 45)
Evidence in support of Application by Applicant (Rule 46)
Evidence in Reply by Opponent (Rule 47)
Hearing of Opposition
Adjournment of Hearing (if required)
Order by the Registrar of Trademark on Notice of Opposition
