Trademark Objection

How to Reply to Trademark Objection in India?

Online Legal India LogoBy Online Legal India Published On 22 Aug 2022 Category Trademark

Trademark objection in India occurs after the registrar has accepted the trademark application on the basis of distinctiveness and published the trademark opposition of a third party in the journal. The trademark registrar or a private party may frequently oppose a trademark registration throughout the registration procedure. 

What is Trademark Objection?

After a trademark application is submitted, a trademark examiner looks it over and searches for earlier trademarks that are the same as or similar to the mark under consideration. The trademark examination report is a compilation of the trademark Examiner’s conclusions. 

The application status will always be considered as “Opposed” whenever a trademark objection is raised. A trademark that has been registered will have the status “Objected” in the Indian trademark registry. The applicant/user of the trademark shall get notification of the objection and the reasons for opposition therein.  

Reasons for Trademark Objection in India

Use of Wrong trademark Form
 

The trademark examiner would raise an objection if the application was not submitted in proper form. In this case, the examiner will make the following statement: The application for a certification mark is made on Form TM- 1, and by submitting an application on Form TM - 16, the form of application should be amended to read as TM- 4. The applicant must then submit a request on TM-16 shortly later.

Wrong Applicant Name
 

The applicant must be filed under the name of the partnership firm and include the names of all partners. On TM-16, the same must be filed.

Inappropriate Address on the Trademark Application 

 

If the applicant’s main location has not been mentioned in the application, the following objection would be made: The applicant’s main address should be brought on record by making a request in TM-16. The petitioner is required to perform the aforementioned in order to address the objection.   

If one Fails to File Trademark Form TM-48
 

The trademark Form TM-48 must be attached with any trademark application that is submitted on behalf of the applicant by a trademark attorney or trademark agent. If Form TM-48 is missing or incorrectly filled out, the trademark objection would be raised. 

Similar Trademarks in Existence
 

If the claimed trademark represents any resemblance or similarity to something that already exists, the trademark may object to it. The objection will be made in accordance with section 11(1) of the Trade Marks Act because there are registered same or similar marks for identical or similar descriptions, which may lead to consumer confusion. In this case, the applicant can defend their trademark by demonstrating how it differs from those already in use.  

If a Trademark Lacks a Unique Character
 

A trademark that cannot discriminate between the products and services of two parties is considered to lack unique character and are therefore subject to opposition. In order to refute such a claim, the applicant must show that the trademark actually has its own distinctive character as a result of earlier use. 

Unclear Specification of Products and Service
 

The trademark examiner may raise objections if there are many products and services listed in the application or if the list is too ambiguous to be taken into account. In the event that such a complaint is made, the applicant must submit a request on Form TM-16 to rectify the complaint and detail the precise goods for which the trademark is applied. 

How Can You Respond to the Trademark Objection?
 

The applicant will receive due notice of the objection and the grounds for it after it has been filed. Firstly, you must submit the counter-statement to the objection. This must be done within two months of the day the notice of objection was received. If an objection is not submitted within two months, the application would become abandoned. 

Analyse the reason for Trademark objection- The similarity of a proposed trademark to an existing mark is one of the most frequent grounds for objecting to the issuance of a trademark. There may be a visual or linguistic similarity (verbal similarity). You will need to demonstrate the following in this case:

  • That the markings differ depending on the type of items
  • That the comparable mark is not identical in character and that it is associated with a distinct industry, business, or trade
  • That there are different ways to place orders or buy things bearing a trademark resemblance
  • Any further circumstances to show that the general impression the consumer has of the items does not leave them in the dark about their origin or source.

Filing Evidence with the Registrar
 

To support your case further for the grant of the trademark, you must submit a number of required documents: 

  • This might include evidence of the mark's use on products, the applicant's official website, trading circles, or any other important location. For 3D markings, precise images are necessary.
  • If there is a similarity, the applicant has two options: show how the marks are different or change his mark.
  • The owner of a similar mark may provide a no-objection certificate.
  • In some circumstances, the Registrar might think the trademark is overly wide or that it's doubtful the applicant would engage in or offer that variety of goods or services. In these situations, you would need to show that the trademark is being used or is intended to be used on each of the products and services mentioned. Furthermore, if the items are already in existence, owners may provide concrete proof of them.

Conclusion
 

If you face any difficulty in responding to the trademark objection in India, you can contact our professional at Online Legal India who will help you in this process and guide you with every step in replying to the objection in your trademark application.

 


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