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.
Trademark Opposition In India
Trademark Opposition In India For As Low As Rs. 1
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Trademark Opposition In India
A trademark helps in recognizing various goods and services, by making a character that makes the brand hang out in the market. In the event that it isn’t verified, it would lose its unmistakable component and it won’t have the option to make a notoriety in the market. Trademark opposition is where an outsider can stop an individual or an organization from acquiring enrollment of a trademark that isn’t particular or is now being utilized in the market. This is to evade any disarray among the customers or clients with respect to the brand or the organization, they are profiting services or great structure. It forestalls weakening of the brand estimation of previously existing trademarks or notable imprints and furthermore verifies their selectiveness. Trademark opposition and trademark protest are two unique stages and there is consistently perplexity among masses about them. This article would bring some clearness between the two and would clarify the idea of trademark opposition to sum things up
Objection vs. Opposition
A trademark before getting registered goes through many stages that check its registrability. One of the initial stages of refusal is trademark objection, which is instituted by the Trademark Examiner from the Registry. An objection in the most cases can be overcome by proper representation before the registrar.
Some common grounds for objection are:
- Lack of distinctiveness (Section 9),
- Similarity with pending or registered marks (Section 11),
- Usage of geographical names,
- International proprietary names,
- Offensive or obscene words as a part of or as a trademark
Trademark Opposition is instituted by a third party after the application is accepted by the Trademark Registry. This is a very important and critical stage in the trademark registration procedure. After the trademark fulfils all the initial requirements i.e. the distinctiveness factor and has got an approval from the registry regarding its registrability, it is finally advertised in the Trademarks journal for inviting any third-party opposition. The main reason behind this is to give an opportunity to the common public to raise an opposition against the registration if they believe the trademark to be deceptively or phonetically similar to their owner other existing marks.
Who can file an opposition?
Any person may give a Notice of Opposition irrespective of the fact of his commercial or personal interest. The person need not be an owner of a prior registered trademark. He can be a customer, a purchaser or member of the public likely to use the goods. The question of bona fides of the opponent does not arise in case of filing an opposition. People are permitted to oppose the TM within a period of three months from the date of its publication in Trademark journal, which can then be extended to a maximum one more month.
What are the Grounds of Opposition?
A pending trademark application may be opposed on the following grounds:
- The mark is a generic term for the associated wares or services (in any language);
- The mark is primarily merely a surname;
- The mark is confusing with another trademark, official mark, an Olympic mark or a geographical indication registered in India;
- The trademark is prohibited under the Emblem and Names Act, 1950;
- The mark is scandalous, obscene or immoral;
- The mark is customary in the current language or in the established practices of business;
- The mark is contrary to the law or is prevented by law;
- The mark contains matters that are likely to hurt the religious feelings of any class or section of people;
- Another party had prior use of the mark or a confusingly similar mark in India;
- The applicant used the mark only as a licensee of another party;
- The mark is devoid of distinctive character;
- The mark is descriptive in nature;
- Application for the trademark is made with bad faith;
- The trademark is likely to deceive the public or cause confusion.
Trademark Opposed Objection vs. Opposition
Documents Required For Trademark Opposed
What is the procedure involved in Trademark Opposition in India?
Essentials for filing an Opposition
The trademark opposition is filed through form TM-O. The concerned party that files the
opposition needs to submit required documents along with information of the application being opposed.
The required details and documents differ based on the ground of opposition. Let’s have a look over the ground of opposition and associated details.
If the opposition is based on the previously registered trademark, the opponent needs to mention the details of such TM with its status, application number and priority date.
If the opposition is based on already existing well-known marks or a mark having a reputation in the market, any document that can act as an evidence of such a mark and an indication of the country or countries in which the earlier mark is recognized to be well known should be mentioned. Alternatively, the proof that the mark is registered or applied for can be presented.
In situations where the opposition is filed by a licensee not being a registered user, the name of the licensee and his address and an indication that he has been authorized to enter the opposition may be given.
In situations where the opposing party is a foreigner, having no place of business in India, the name of the opponents and his address for service in India is required.
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
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.
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.
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.
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