Trademark Opposition.

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What is a Trademark Opposition?

A trademark application can be opposed by any reason by any person for many different reasons throughout the trademark application stage. The person filing the opposition need not have personal interest in the substance or registered trademark owner.

Who can oppose a Trademark Application?

Statutorily, Section 21 of the Trademarks Act, 1999 states that ‘any person’ can file the notice of opposition. This includes individuals, companies, partnership firms and trusts. In fact, if two or more persons have the same issues against a trademark, they can be joined together as opponents. Also, It is not required the person should be registered trade mark owner.

Ground for Trademark Opposition

The various grounds on the basis of which a person may initiate Opposition Proceedings are:

• The trademark is similar or identical to an earlier or existing registered trademark.
• The mark is devoid of distinctive character.
• The mark is descriptive in nature.
• Application for the trademark is made with bad faith.
• The mark is customary in the current language or in the established practices of business.
• The trademark is likely to deceive the public or cause confusion.
• The mark is contrary to the law or is prevented by law.
• The trademark is prohibited under the Emblem and Names Act, 1950
• The mark contains matters that are likely to hurt religious feelings of any class or section of people.

Time Limit for Trademark Opposition

Once it is advertise of a trademark in the TM journal, within 3 months any person can oppose registration of the trademark. Person cannot be taken directly to a Court TM opposition filings can be done only at the Trademark Registrar’s office. Trademark registration will be refuses once If a trademark opposition is successful. Trademark will be registered If the trademark opposition application is rejected.

Trademark Opposition Process

You can follow the flowchart for the TM opposition procedure:

  • Step-1: Filing a notice of opposition:- Any person or entity willing to raise an opposition or to file the notice of TM opposition against the one in the TM Journal needs to file within four months from the date of publishing.

  • Step-2: Filing a counter statement:- The entity can file the counter-statement within two months of the receiving of the notice of opposition. If the applicant fails to submit the counter statement within the prescribed time, then it will be clear that the applicant has abandoned the TM application.

  • Step-3: Evidence regarding the TM opposition:-If the applicant has submitted the Counter-Statement within the required time, with an extendable time of one month, then the opponent must present the evidence via an Affidavit. In the case, the opposition doesn’t wish to submit the evidence, then he can write to the Registrar for the same. Instead, he proposes to rely on the matters declared in the Opposition’s notice.

  • Step-4: Evidence in Favour of Application:-Once the opponent has provided the evidence in support of TM opposition, the applicant will again get three months for presenting the evidence in favour of the application, if any.

  • Step-5: Again evidence in reply:-Moreover, the Opponent again gets with two months to submit the evidence in response to the evidence of the applicant.

  • Step-6: Hearing:-Based on all the above facts, the Registrar at trademark registry shall call for a hearing. Both parties need to notify the Registrar within fourteen days of the receipt of the hearing notice. Eventually, the Registrar of Trademark will hear the matter and take the decision upon merits.

  • Step-7: Rejection or Registration:-If the evidence and facts hold valid for the applicant, the trademark will get the status of registered. Additionally, the applicant will receive the trademark registration certificate. However, if the decision is in favor of the opposition, then the trademark application will stand reject.

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