Reply TM Objection
OVERVIEW
Trademark is basically one of a kind of 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 are 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.
After the filing of the trademark application, either trademark is approved or objected to 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.
Trademark objection: Any other third party can raise an objection within the specified time mention in the action against the trademark proposed registration in the capacity of public interest.
Following are the two ways in which a third party gets a chance to object to the registration of a trademark.
1. When a business entity using a registered trademark which is used by some other business entity without taking any NOC firm it
2. When The trademark published the Trademark Journal or,
After filing of objection or similar trademark a third party raised the objection and trademark status is a change to Opposed. While filing the opposition it must mention the grounds of opposing in the filling. 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 is going to be given due notice about the objection also because of the grounds of objection.
File the counter-statement to the objection.
The time period of filing of objection 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 appliance to Abandoned.
Once the counter is filed, the Registrar may call for a hearing if he rules in favor of the applicant the trademark will be registered. If he ruling in favor of the opposing party, the trademark will be removed from the Journal and the application for registration will consider rejected.
At this juncture, the applicant may file an appeal to the property Appellate Board (IPAB):
The appeal must be filed within 3 months from the date of the order going by the Registrar.
If an appeal is filed after the amount of three months, the applicant must state the rationale for the delay by filing a petition for condonation of delay with a fine of Rs 2,500. If the rationale is accepted by the IPAB the appeal is going to be posted for hearing.
The appeal filing must be done as per 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 self-attested by the applicant
Every application must then be endorsed by the Deputy Registrar on the date which the application is presented
If the Deputy Registrar finds any defects with the appliance he will give notice of an equivalent
The defects must be fixed and therefore the application must be resubmitted within 2 months by the applicant.
Failing to try to do so, the Deputy Registrar will deem the appliance to be Abandoned
If the application is found to be in order, the Deputy Registrar will register the case and will allow it a serial number.
After the case is registered at IPAB the hearing date will be allotted to both parties. The place of the hearing is going to be decided upon by the jurisdiction under which the case falls consistent with rule 2(m). A date will be given according to the hearing of the case. The hearing will follow as such.
The IPAB will choose the case that supported the submissions made by the 2 parties.
If one party fails to represent the case either through himself or their representative 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 1 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 sooner order.
The case is going to be heard and therefore the order gone by the IPAB will stand. If the applicant is aggrieved by the order gone by the IPAB he still has the choice to file an appeal to the supreme court with competent jurisdiction. Subsequent appeals also can 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:
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- First, the mark will go for Vienna codification
- Then they will do a formalities check, to see if the application has been filed with all required documents.
- Next, it will be marked for an examination. This 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.