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Reply TM Objection (F)

Trademark is basically one of a kind of an intellectual property consisting of designs, logos and marks. Companies use various designs, logos or words to distinguish their products and services from others. Those marks which help in distinguishing the product or services from others and help the customers in identifying their brand, quality and even origin of the product is known as Trademark.

Unlike patents, a trademark is registered for 10 years and thereafter it can be renewed for another 10 years after further payment of renewal fees.

An objection is one of the initial stages in the registration process. It can be filed by either the Examiner/Registrar or any third party. An Examiner/ Registrar may file an objection under trademark act on Absolute Grounds of Refusal and  Relative Grounds of Refusal of the Act on primarily two grounds –

  1. If the application contains incomplete/wrong information ; or
  2. If there is already a similar trademark(s) in existence.

A third party may object to the registration of a trademark in the capacity of public interest. There are two ways where a third party gets a chance to object to the registration of a trademark.

  1. When the mark is published the Trademark Journal or,
  2. When the applicant uses the mark before its registration. In this case, the status of the application will be changed to Adv Before Acceptance.

Upon filing an objection, the status of the application will change to Opposed. While filing an opposition the person opposing it must include the grounds upon which he is opposing the registration of the trademark. The examiner will provide the applicant due opportunity to defend his application as per the process laid out under the Act.

Once an objection is filed the applicant will be given due notice about the objection as well as the grounds of objection.

  • The first thing one must do is file a counter statement to the objection.
  • This must be done within 2 months from the date of receipt of the notice of objection
  • Failure to file an objection within 2 months will change the status of the application to Abandoned.

Once the counter is filed, the Registrar may call for a hearing if he rules in favour of the applicant the trademark will be registered. If he rules in favour of the opposing party, the trademark will be removed from the Journal and the application for registration will be rejected.

  • At this juncture, the applicant may file an appeal to the Intellectual Property Appellate Board (IPAB):
  • The appeal must be filed within 3 months from the date of the order passed by the Registrar.
  • If an appeal is filed after the period of 3 months, the applicant must state the reason for the delay by filing a petition for condonation of delay with a fine of Rs 2,500. If the reason is accepted by the IPAB the appeal will be posted for hearing.
  • The filing must be done according to the rules prescribed in TradeMarks (Applications, Appeals and Fees to the Intellectual Property Appellate Board) Rules (hereinafter referred to as Trademark rules).
  • All of the documentation must be verified by the applicant
  • Every application must then be endorsed by the Deputy Registrar on the date of on which the application is presented
  • If the Deputy Registrar finds any defects with the application he will give notice of the same
  • The defects must be fixed and the application must be resubmitted within 2 months by the applicant.
  • Failing to do so, the Deputy Registrar will deem the application to be Abandoned
  • If the application is found to be in ordder, the Deputy Registrar will register the case and will allot it a serial number.
  • Once the case is registered the IPAB will hear the case. The place of the hearing will be decided upon the jurisdiction under which the case falls according to rule 2(m). A date will be given for the hearing of the case. The hearing will follow as such.
  • The IPAB will decide on the case based on the submissions made by the two parties.
  • If one party fails to present themselves on the day of the hearing, the IPAB can:
  • Rule on the merits of the case
  • Give an order ex parte (in the absence of one party)
  • Dismiss the case
  • If the case is dismissed or is ruled ex parte a period of 30 days from the date of the ruling is given to file a petition against the earlier order.
  • The case will be heard and the order passed by the IPAB will stand. If the applicant is aggrieved by the order passed by the IPAB he still has the option to file an appeal to the High Court with competent jurisdiction. Subsequent appeals can also be filed to the Supreme Court of India.
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All about TM Objection

The process of registration of a trademark is set out under Section 18 of the Act. Once you file an application to register a trademark it can take between one to two years for it to be registered.

Once you file the application for registration, you will be given an allotment number using which you can check the status of your application. The process follows as such:

    • First, the mark will go for Vienna codification
    • Then they will do formalities check, to see if the application has been filed with all required documents.
    • Next, it will be marked for an examination. Which means it will be sent to an examiner who will examine the mark for any infringements of provisions under the Act
    • If no issues are seen then the exam report will be issued.
    • After the exam report is issued the mark will be published in the official gazette, the Trademark Journal.
    • Upon publishing it in the Journal a window of 3 months, which may be extended for an extra month, will be open for the public or third parties to object to the registration of the trademark.
    • If there are no objections then the trademark will be registered and the applicant will be given the registration certificate and he will be protected for ten years from the date the application was filed.

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Frequently Asked Questions

Yes, you can file the TM objection reply by your own, but hiring a Trademark attorney will always help as these people always have the experience of drafting replies to the point and the same will always help to add the value and get your TM application registered.

The most common reasons for TM Objections are:

  • Objection of Section 9 – Trademark is descriptive or general in Nature
  • Objection of Section 11 – Similar trademarks are available in TM Database
  • Incorrect TM form used
  • Description in the TM-1 is not as per WIPO
  • Address in the TM application is incorrect
  • TM-48 or POA is not filed with the TM-1 form
  • Applicant name is not correct

To avoid Trademark Objection, one needs to select a proper trademark, do deep study and also keep the following points in mind:

  • Deep research of the existing similar trademarks and thorough study of the database of trademarks.
  • Use of unique, specific and not general and non-descriptive words.
  • Avoiding deceptive, disparaging and offensive language.

If the trademark objection is not filed within the specified and reasonable time, then there is an option with the TM examiner to mark that Trademark application as Abandoned.

If 30 days has been passed off from the issue of the TM Examination report, you can file the reply, if the status is still showing awaiting for the reply of examination report and not abandoned.

Here are many reasons the TM Examiner raised the objections and some of them are:

  • Applicant have not used the correct Trademark form for Application
  • Applicant have used not used the correct Trademark Applicant Name
  • Applicant have not filled the correct details of the firm or firm type
  • The Trademark Form TM-48 (POA) has not been filed by TM Attorney
  • Applicant have mentioned incorrect address on the trademark application
  • The description in the TM Application is not as per WIPO
  • If the same trademark or a similar trademark already exists
  • If the trademark name is descriptive or general or offensive

The TM Applicant needs to respond back the Trademark examination report within 30 days of the receipt of the report. When the applicant receives the Trademark examination report by personal or via his attorney then reply needs to file within the 30 days mandatorily.

Once the application of Trademark registration is filed in the respective Tm Department and examined by a Trademark Officer/Examiner, a trademark examination report is sent to the trademark applicant or person authorized by the trademark applicant. Trademark examination contains the status of the Trademark application, more than 70% application got the objected status, and for these 70%, the applicant’s needs to respond back the objection raised within 30 days of receipt of the TM Examination report.

Trademark Objection raised by the TM Examiner and is in the initial stage of the trademark registration, which easily gets cleared in most of the cases while the Trademark opposition can be said the last hurdle in getting a registered status in the Journey of trademark registration and raised by the general public after trademark gets published in the TM Journal.