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 TRADEMARK OPPOSITION

 

Trademark Opposition proceeding in India, though very long, is really interesting and fun. Before diving into the procedure of opposition beginning, a quick run through of the general method of filing until enrolment would be useful.

Following filing an application for a new mark, the Registry examines the program to determine the distinctiveness of the mark. In the event, the Examiner is satisfied that the mark is distinctive enough and if there are no similar markings, it will be posted in the Trademark Record. So once the symbol is published in the Trademark Journal, it is then open for competitors to third parties for a period of 4 months.

Once the Trademark opposition proceeding is completed, the mark is authorized with regards to the outcome of the identical.As per Section 21 of the Act, any person may, within four months from the date of the advertisement or re-advertisement of an application for registration, give notice of opposition to the registration in Form TM-5 along with the requisite fees to the Registrar. Notice of opposition should be based on grounds of opposition and is required to contain a statement showing how the petitioner would be damaged by the registration of the pending trademark. An opposition can be filed based on absolute or relative grounds. 

The absolute grounds may be based on a descriptive or non-distinctive character of the trademark filed for registration, on a conflict with official signs, generic nature, geographically deceptive, misdescriptiveness etc.

The relative grounds state that a trademark is confusingly similar to an existing registered trademark or that it conflicts with an existing prior common law rights established- there exist likelihood of confusion, similar to well-known marks, bad faith involved. An opposition based on relative grounds can only be filed by an owner of any prior relative rights.

The registrar shall serve a copy of the notice of opposition to the applicant. In return, the applicant shall send a counter-statement (in form TM-6) of the grounds on which he relies for his application to the registrar within two months from the date of receipt of the copy of the notice of opposition. If he does not do so, he shall be deemed to have abandoned his application. The Form TM-6 has also to be accompanied by the Government Fees as per the Schedule. Thereafter, the registrar shall serve a copy of the counter-statement to the person giving notice of opposition.

Both the opponent and the applicant shall be given an opportunity to be heard by the registrar if they desire and any evidence upon which the opponent and the applicant may rely shall be submitted in the prescribed time and manner to the Registrar.

After hearing the parties and considering the evidence, the Registrar shall decide whether and subject to what conditions or limitations the registration is to be permitted and may take into account a ground of objection whether relied upon by the opponent or not.

If the person giving the notice of opposition or the applicant sending a counter-statement neither resides nor carries on business in India, the Registrar may require him to give security for the costs of proceedings before him. If there be any default of such security, he may treat the opposition or application, as the case may be, as abandoned. Correction of any error or any amendment of the notice of opposition or counter-statement may be permitted by the Registrar at his discretion.

 

OBJECTION VERSUS OPPOSITION

 

One often gets confused by intermixing the two terms used in prosecution objection and opposition. The two terms are not interchangeable and mark two different stages of prosecution.  An objection to a Trademark Application is raised by an Examiner, Trademarks when he/ she finds any objections on which the Application should not be granted/ accepted. It is a Government Office Action (sometimes also called “Office Action”). Whereas, Opposition is raised by third private parties (not Government Office) to getting the Trademark Application registered at the Trademark Office.

The objection is made prior to acceptance for publication whereas Opposition can be filed by third private parties, once the Trademark Application has been Accepted and Published in the Trademark Journal.

Throughout the trademark registration process, if any person filing an opposition against your trademark then you do not need to worry about that.
Registration Karwalo offers a simplified service to clients.

 

WANT A QUOTE THEN PLEASE CONTACT US @ 8260008585
 

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