Trademark Opposition in India comes at a stage after the registrar has approved the trademark application on the distinctiveness factor and publishes the trademark in the journal for the third-party opposition. Anyone can oppose the published trademark within a period of 3 months which can be extended for a month more (3+1); beginning from the day it was first published. If the mark is opposed, an opposition proceeding is initiated. After which, both the parties involved need to come to a conclusion and the decision is taken. The decision whether the mark can be registered or abandoned would be made. There is no restriction on filing an opposition. Anyone who believes that the published mark might create confusion among the public can file for the opposition while the onus of defending the trademark lies in the hands of trademark registrant.
Trademark Opposition Features
1. Highly effective remedy for TM owner
Trademark opposition plays a very eminent role as it is a chance for the registered trademark owners to stop any other mark that can hinder/ dilute their brand or cause any possible confusion in the market
2. Public consultation
As the brand is created through the public popularity and demand, it is very important to consult the public for approval about the registrability of the applied trademark.
Grounds for Applying for Opposition
- If the trademark is similar or identical to an earlier or existing registered trademark.
- If the mark is devoid of any distinctive character or is descriptive.
- The trademark is likely to deceive the public or cause confusion.
- If the mark is customary in the current language, or it is in the established practices of business.
- If the mark is contrary to the law or prohibited under the Emblem and Names Act, 1950
- The mark contains matters that are likely to hurt religious sentiments of any class or section of people.
Process of Registration
1. Details of applicant – Name, Address, Nationality, etc of the applicant. Body corporates/other categories need to provide with registration certificate.
2. Power of Attorney – It allows the attorney to file the trademark opposition on your behalf
3. Affidavit – Affidavit with the basic information about the trademark and its user date and proof of use
4. Details about the opposed mark – Detailed information about the mark against which the opposition is to be filed, i.e. name and basic grounds for filing the opposition
Frequently Asked Questions
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.
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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