Trademark opposed or opposition of Trademark is an objection raised third party against the application of the trademark within 4 months from the date of advertisement in the trademark journal. Explanation for this is to offer a chance to the regular public to raise a resistance against the enlistment in the event that they accept the brand name to be misleadingly or phonetically like their proprietor other existing trademark.
Grounds on which Opposition can be raised
The trademark is similar or identical to an earlier or existing registered trademark.
The mark is devoid of distinctive character.
The mark is descriptive in nature.
Application for the trademark is made with bad faith.
The mark is customary in the current language or in the established practices of business.
The trademark is likely to deceive the public or cause confusion.
The mark is contrary to the law or is prevented by law.
The trademark is prohibited under the Emblem and Names Act, 1950
The mark contains matters that are likely to hurt the religious feelings of any class or section of people.
Why file Trademark Opposition?
An Effective remedy for the trademark owner:- It is a wonderful chance for the owner to claim their mark if anyone is trying to hurt the reputation of the business.
Public consultation:- To reach the heights public approval is very essential for any business. As a trademark goes public for the opposition , therefore it is created through public popularity and demand.
Documents required for filing Trademark Opposition
Details of an applicant:- Name , address, nationality of the applicant. Body corporate/others need to provide the following details long with the registration certificate.
Power of attorney:- It allows the attorney to take an action on behalf of an applicant.
Affidavit:- Affidavit contains the basic information about the trademark and its user.
Details of the opposed mark:- Details should be provided against which the opposition is to be filed. It must explain the name and basic grounds for filing an opposition .
Who can file a Trademark Opposition?
Any person can file the notice of opposition. This includes individuals, companies, partnership firms, and trusts. In fact, if two or more persons have the same issues against a trademark, they can be joined together as opponents.
Procedure involved in Trademark Opposition
Notice of Opposition:
Any person can file a notice of opposition on a trademark that is advertised in the trademark journal within 4 months from the date of advertisement.
Within 2 months of the receipt of the notice of opposition, the Applicant can file a counter statement. If the Counter Statement is not filed within 2 months, the Applicant is deemed to have abandoned the Trademark application.
Evidence in Support of Opposition:
If the Applicant files the Counter-Statement, within 2 months (extendable by one month) of the receipt of the counter-statement the Opponent must file evidence, by way of an Affidavit. The Opponent also has an option to write to the Registrar stating that he does not desire to file evidence but instead intends to rely on the facts stated in the Notice of Opposition.
Evidence in Support of Application:
Upon receipt of the evidence of the Opponent, even the Applicant is provided with 2 months (extendable by 1 month) for filing Evidence in Support of Application, if any.
Evidence in reply:
Additionally the Opponent is given 1 month (extendable by 1 month) to file Evidence in response to the Applicant’s evidence.
Based on the notice of opposition, counter statement, and evidence filed, the Registrar shall call for a hearing. Within fourteen days of receipt of the notice of hearing, the parties are required to notify the Registrar of their intention to appear in the matter. Finally, the matter is heard by the Registrar and decided upon merits.
Registration or rejection:
If the registrar decides in favour of the applicant, the trademark will be registered and registration certificate will be issued. If the registrar decides in favour of the opponent, then the trademark application shall be rejected.
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