Opposition of a trademark and rectification of the Trademark Registration
Opposition of a Trademark:
A “Trademark opposition” means an objection raised by a third party, against trademark application filled. An opposition of trademark application can be raised within four months from trademark application. Any Individual person, Partnership firm, Private Limited Company, LLP firm, Trust or society know as the owner of the trademark brand can file trademark opposition. Trademark Opposition in India can be filled within 4 months from the date of Trademark Application Published in Trademark Journal or The person filings the opposition should have commercial interest in the name. Which harms his goodwill or Brand in market?
Following are the few grounds under which a trademark opposition may be filed:
- The trademark is devoid of any distinctive character or may include indications in which may serve trade/business to designate quantity, quality, values, intended purpose, geographical origin.
- The trademark is likely to deceive the public or cause confusion to the public. This includes any mark which may able to be identified with an already registered trademark or that has become customary in the practice of business.
- The trademark contains matters which are likely to hurt any religious sentiments of any class or section of people or group of people.
- The trademark is prohibited under the Emblem and Names Act, 1950.
Following are the steps to file a trademark opposition:
- Filling a Notice of opposition: Any person or entity wishes to file a trademark opposition notice is required to mention the reason and important specification in detail including the details of opposed application, the ground of opposition, and details of the opposing party. Such notices must be filled within 4 months from the date of advertisement of Trademark application. Wherein the applicant has 2 months for filings trademark opposition counter-statement from the date of receipt of notice. Or else the trademark registry will deemed the Trademark application to be abandoned or removed.
- Filling of Evidence: Upon receiving the trademark opposition counter statement by opponent is required to file evidence with all the proofs and affidavit within 2 months (Which can be extended by 2 months) from the date of receipt of counter statement. In case if opponent fail to file evidence, in that case the opposition will treated as abandoned and Trademark application will forwarded to trademark registration process. At the same place applicant has to file the evidence to registrar. In case if applicant does not wish to reply and already stated all the facts in counter statement then same has to be submitted in writing to registrar. Additional documents can be filled in case if both or any of the parties requires subsequently.
- Hearing of the parties: After completion stage of evidence, the Trademark registrar generates the hearing notice mentioning the tribunal, hearing date, place and time the parties will be heard And the notice of hearing must be send before one month form the date of hearing. If any parties fail to hear the trademark hearing then such notice will deemed as not desiring to appear in trademark hearing and matter will proceed accordingly. After hearing from both the parties the registrar is liable to decide that the trademark application will be refused or Trademark apposition been cancelled.
Rectification of Trademark Register:
Any ‘person aggrieved’ by the Trademark registration, can file for cancellation, rectification or removal of trademarks. Trademark rectification can be filed to remove the registered brand name from registrar of trademark within 5 years from the date of trademark registration. Same procedure as trademark opposition will follow, only one person who has actual interest in Mark will continue using the mark and mark of other party will removed and will deed as made damage to the mark is liable to penalized.
Following are few grounds under which an application for trademark rectification can be filed:
- The trademark which is registered without any clear intention that the brand registered should be used only for the scope wherein that brand is registered. Or else to be registered wherein trademark class / scope wherein they wish to use it.
- If trademark application is filled without sufficient cause and trademark registration has been obtained through misrepresentation and fraud documents, if the mark is similar to the registered mark.
- If trademark application has not been used for more than 5 years continuously from the date of Trademark registration.
- The owner of the brand is no longer competent with the goods and services provided by them and the mark has no longer public advantage remains with registered trademark in market.
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