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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.
Secondly, if by any chance he fails to check it properly and allow it to be registered, the mark first will be published in the Trade Marks Journal, published from time to time, normally on a weekly basis, the official website of the Registrar of Trademarks. After the publication of such marks, one can file an opposition against subject trademark, stating their objections, as provided under Section 21 of The Trademark Act 1999. A time limit of three months is allowed for initiating trademark opposition proceeding after it appears on the journal for the first time; however that can be extended to a maximum of four months whatsoever. once opposed the trademark application status will reflect as 'Opposed' and Registrar will be open to take evidence as well as hear the party's contentions to decide further.
Section 21 of the Trademarks Act, 1999 states that 'any person' can file the notice of opposition, that includes any natural or legal person like companies, partnership firms etc. Trademark opposition filing can be filed by an Indian or foreign customer, member of the public or competitor or any other person. In fact, if two or more persons have the same issues against a trademark, they can be joined together as opponents.
The following stages are involved in the Trademark Opposition filing procedure:
# Hearing: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 –M,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.
# If 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.
Now in this already cumbersome process, the security checks provided in the acts become the reason for further delaying of the trademark registration which takes a minimum of 2 years to complete. once the mark is opposed it is imperative for the applicant to reply vehemently and to prepare his defense in order, it is also advisable to take experts help in the process of registering a trademark, that will help by eliminating all the chances of getting objected or rectified, and an unopposed registration is the best way out there to get the registration done easily and in time.
Professional Utilities offers a comprehensive suite of solution for protection of your trademark in India. Prior to application of the mark and post-application of the trademark, Professional Utilities can help you with consultation on protecting your mark. However, please note that the ultimate authority for registration of a mark rests only with the Trademark Registrar and Professional Utilities or its Employees can at no-stage guarantee registration of a trademark.
Prior to applying for a trademark, we can help you do a trademark search. Under the Trade Marks Act, identical or similar trademarks cannot be registered. It is easy to determine identical trademark from a trademark search. However, the test for similarity is applied by a Trademark Examiner on a case to case basis. Hence, Professional Utilities or its employees cannot predict which trademark applications will be objected.
In case a trademark application is objected by the Trademark Examiner, a reply can be submitted to the objection raised by the applicant with facts and points supporting registration of the mark. Based on the reply, the Examiner can call for hearing or allow the trademark filing to proceed or reject the trademark application
Prior to a trademark application being registered, the Trademark Registrar would publish the mark to be registered in the Trademark Journal and allow a period of 90 days for any person to raise an opposition. Professional Utilities can help you manage trademark oppositions or file an application opposing registration of any other mark published in the Trademark Journal.