Brief of Trademark Objection

Trademark Objection is the intrinsic part of the Trademark Registration. Trademark Objection in India is considered to be the most crucial and important stage for the registration of Trademark. Hence, after filing the application for registration of trademark, the trademark officials specifically examines them and analyzes the same application & the mark. Without crossing this stage of Trademark Objection one cannot get Trademark Registration. Trademark is a right given by the Trademark Act, 1999 for the protection of Intellectual property. While the process of getting Trademark Registration is going on, there comes a stage when the mark for which registration is asked by the applicant, will be put in the public journal. This has been done to secure the right of other trademark holder. That is why it is always suggested by the attorney and also written in the Trademark Act, 1999 that your mark must be unique and not at all similar to any third party.

If anybody do objection then, his or her objection will be examine properly and in case it seems senseless or not worthy, it will be rejected by the authorities. Registration of Trademark application can be rejected by the Authority on various grounds, if they deem fit to do so. Many at times during the process of trademark registration, the Trademark Registrar may raise objections on the intended trademark if it seems to violate any rules and laws of trademark registration. The reason of rejection will also be given. The rights covered under the above mentioned act are protection, objection and registration.

What is Trademark Objection?

Once a trademark application is filed by the applicant it will be examined by the Trademark Examiner. He or She will search about the earlier trademarks. If it is found that the trademark for which one is asking for registration is identical or similar to the marks which are already in existence then these findings will be compiled in a report and this report is known as Trademark Examination Report. Now in this case when similar or identical trademark exist, then objection can be raised. Reason to raise objection is given in section 11(1) of the Trademark Registration Act.

When the trademark is published in the trademark journal, during the time of Trademark Registration process or sometimes when the applicant uses the mark before its registration, it can be objected by the public, examiner or any other third party who feels his any right given by the Trademark Act, 1999 is violated. It can be done because of several reasons, two of them are mentioned above. The objection cannot be the reason for rejection; however, registrar may ask for various clarification or explanations about the logo or mark for which one is asking for trademark. Third party can also create objection on the name of public interest, it is not necessary his or her personal rights will be violate.

Grounds for Trademark Objection

There are many reasons behind filing Trademark Objection. Some of them are given below-

Incorrect Trademark Form

If the application made by the applicant in a form which is not correct, then objection can be raised for the same by the Examiner. The applicant can correct the mistake by requesting to correct the same mistake through form TM-16. But it is suggested to you that try not to do such mistakes. Such kind of mistakes will not happen if one will take advice of a experienced attorney, lawyer, consultant or advisory.

Incorrect Applicant Name

Application for Trademark Registration should be made with utmost care. Specially when it comes to name. Incorrect name can delay your registration as objection for the same will be raised by the Examiner. In case trademark is taken for the partnership firm then name of all the partners should be mentioned correctly. One can correct the name with the form TM-16.

Failure to Attach Form-48

If the applicant fails to file Form-48 with the application for the registration then the objection will be raised by the Trademark Examiner for the same. This form is needed only when application is filed by the attorney or lawyer on behalf of the actual applicant who wants to take Trademark Registration. This form is basically regarding to “Power of Attorney”. This mistake can be resolved with the help of the form TM-16.

Incorrect Address in the Application

If the application has incorrect address of the applicant or the address of the business is also incorrect then in such situation objection will be raised by the Examiner. It’s not only about the mention of incorrect address of the business or the applicant but also in case applicant does not mention the address of the applicant or the business, objection will be raised. Hence both the things that are, mention the address and the address must be the correct address must be taking care. This mistake can also be resolved with the help of the form TM-16.

Inaccurate Specifications of Goods and Services

The examiner can raise questions if the application filled shows the vague number for goods and services in the list. However, if such an objection is raised by the examiner, the applicant must file a request on form TM-16 to remove the objection. Further, the applicant should list down the exact items for which the trademark is sought.

Same or Identical Trademark Already Exist

The application for trademark registration can be objected on the ground if the examiner or the authorized person is of the view that the logo or symbol or sign for which the trademark have been applied for is already being registered under the Register of Trademarks. This objection can be raised under section 11(1) of the Trademarks Act. In this situation applicant can file a reply against the Trademark Examiner Report and put his or her point by that conflicting marks in the report are not similar or identical to the applicant’s trademark. Burden of Proof is on the applicant; hence he has to attach all the evidences with the reply which can proof that his or her mark is different and not similar or identical with the conflicting marks.

Deceptive or Misleading Trademarks

The trademark examiner can raise the objection if he feels that the trademark to be registered can either deceive or mislead the public in terms of its use, nature or quality or can provide any misleading information. However, in such a case, the applicant may choose to apply for exemption of goods and services from this specification by filing TM-16.

Lack of distinctive character

Such trademarks which are unable to differentiate between the goods and services of one person from the goods and services of another can be raised for the process of trademark objection. In order to overcome such a situation, the applicant must provide proof that the trademark is distinctive in nature and has a character of its own.

How to Respond Against Trademark Objection?

Given below are some points, which you should consider while responding against Trademark Objection-

• Applicant needs to analyze and study the objections carefully to leave no room for ambiguity while responding against it.
• Applicant should file a counter statement to the objection raised.
• Proper answer with supporting rules, regulations, laws and documents must be drafted.
• For the purpose of good respond you can take help from any IPR advisory or attorney.
• Such reply along with supporting rules, regulations, laws and documents should be filed on Trademark e-filing portal.

Eligibility for Filing Trademark Objection

As mentioned under Section 21 of the Trademarks Act, 1999 ‘any person’ can file for the Trademark Objection. This may include individuals, companies, and partnership firms and trusts e.t.c. However, if two or more persons have similar issues against any particular trademark to be registered, they can jointly file objection against the same. Further personnel who can file for the objection of a trademark are the author or the owner of an earlier trademark application covering trademarks for similar goods. Also a person who has already used the similar trademark before the client, but has not sought registration of the same trademark yet.

Time Period for Objection

The third party can file for the objection of trademark within the period of three months which may be extended to additional one month from the date of publication of such trademarks against which they are filing objection. Delay can prove harmful sometimes. Hence if anyone one wants to file Trademark Objection against any applicant, do it on time or before the time itself. Extension can be given by the authorities in certain cases but not in every case, therefore one should not take risk. Authorize person always ask for a reason of delay, if they are satisfied with your reason, they can extend otherwise not. In short extension is their discretionary power if they want they can give extension of time otherwise they will not.

Procedure for Trademark Objection in India

The following steps are involved in the process for the objection of trademark in India-

1. Notice for Trademark Objection

Any person can file for a notice of objection on a trademark that is already been advertised and published in the trademark journal within 4 months from the date of advertisement. To follow time duration is suggested, in case you want to secure your trademark right.

2. Counter Statement

The applicant must have to file for the counter statement within 2 months from the date of the receipt of notice of Trademark Objection against the marks for which one is askinf for the registration. If not done so, the applicant seems to have abandoned the Trademark application, hence file counter statement always on time.

3. Evidence in Favor of Objection

One who is filing the objection it is his or her duty to give evidences to proof the same. The applicant through an affidavit can file for the evidence in favor of the objection of trademark against which one is filing the objection. In case applicant have no evidences then, the applicant can also write to the registrar by stating that the applicant does not want to file evidence instead rely up on the facts stated in the notice for objection.

4. Evidence to be Submitted in Favor of Reply

The opponent party is provided a duration of one month which may extend foe a period of another one month in order to file for evidence in response to the applicant’s evidence.

5. Final Hearing

Based on all of the above points and the evidence produced and submitted, the Registrar shall call for the hearing. The parties within the period of 14 days from the date of receipt of the notice of hearing shall notify the registrar for their appearance in the matter. Thus, the matter is then heard by the Registrar of the trademark and then decided on the basis of merits.

6. Final Decision

After the hearing on the matter, the registrar finally delivers the decision. If the decision is in favor of the applicant, then such application is registered as per the Trademark Registration Act. However, if the decision is against the applicant, such trademarks are considered to be objected by the Registrar.

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Without the Trademark Objection it is impossible to get Trademark Registration. It is necessary stage of getting registration. Objections are basically for the protection of the rights of the prior trademark holders. In case somebody copied the trademark it can be objected by the owner. Sometimes false objection has been also raised but if one who is creating objection doesn’t have sufficient evidences to prove his or her objection, it will result into the rejection of the objection by the authorities. But the reason of rejection must be given to the creator of the objection. Objection can be raised once the trademark will be in the journal for the public view. There is a time limit for filing objection in which one have to fight foe once right. It can be extended but in exceptional situations. If you want to file objection or objection has been filed on your registration then you must take help of the attorney or advisory in both the situation for the better result.

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