Trademark objections and how to remove objections
What is Trademark Objection?
Once a trademark filing online is made with registrar of trademarks in trademark application form TM-A, the trademark application is scrutinized by the registrar. There can be various grounds for trademark objectionin India under section 9 and 11 of the trademarks act, 1999 and Trademark rules, 2017 such as
- Similarity or identity with already applied trademarks
- Intending to show quality, quantity, values, Geographical indication
- Devoid of distinctive character
- Likely to hurt religious sentiments
- Contains scandalous or obscene matter
- Prohibited under Emblems and Names Act, 1950
- The shape of goods which results from the nature of the goods themselves
- The shape of goods which is necessary to obtain a technical result
What are the stages of trademark Objection?
After filing the trademark application in form TM-A, the trademark application goes through following trademark status:-
- Vienna Codification: This is the stage where the logo of the trademark applied is cross verified by other already registered or applied logos.
- Formalities check pass/fail: If the basic details and the attachments are correct then the application is marked as formalities check pass, and if not it will be shown as formalities check fail and has to be removed by filing form TM-M
- Examination report issued: If any objection is raised by the registrar under section 9 and/or section 11 of the trademark act, 1999, or any goods/services description has to be altered then a trademark examination report is issued by the registrar for the objected trademark, of which reply needed to filed within 30 days from the date it has been issued.
- Ready for show cause hearing: If the registrar is not satisfied by the averments made in the reply, then a notice for hearing is issued under which the proprietor himself or through trademark agent or trademark attorney has to appear before the concerned registrar and put up his defense. If in the hearing the registrar accepts the defenses, then the trademark gets accepted and published in the trademark journal but if not, then the trademark gets abandoned.
- Public Opposition: Once the trademark is published in journal, for 4 months it remains in public domain for their objections and any proprietor of the registered similar/identical trademarks under the same class can raise an objection and file an opposition. Once you have received opposition from public, then a notice of opposition is sending to you by the registrar and again a reply along with evidences has to be filed.
How to remove trademark objection online of Registrar?
Once the trademark application has been scrutinized by the registrar of trademarks, an trademark examination report is issued (Objected trademark status can be checked out in website www.ipindia.nic.in) under which the clarification is sought by the proprietor of the trademark. A trademark objection reply needs to be filed within 30 days of the examination report being issued, otherwise the applied mark is liable to be abandoned for the want of filing reply. TM reply needs to be thoroughly drafted with concerned case laws and the help of lawyer must be obtained. A trademark reply can be filed online as well as offline, either by the proprietor himself or by trademark agent or trademark attorney.
Trademark objection can be raised under section 9 and/or section 11 of the trademarks act, 1999, and apart from it the registrar may also ask you to file form TM-M in case of any clerical mistake is there in the application. After filing the TM reply, the registrar goes through it and if satisfied with the averments made in the reply pass the order to be published in the trademark journal, but if not then put the case in hearing before the concerned trademark registrar having the appropriate jurisdiction of the application.
Is there any kind of TM objection after getting published in trademark journal?
Yes, there might also be public opposition after getting published in journal. Once the trademark gets published in trademark journal, it is within public domain for period of 4 months and any owner of a registered trademark under same class can raise the objection and send you a notice of opposition. Once received notice of opposition, you have to file a counter-statement within 2 months from the notice, otherwise the registrar may pass ex-parte decision and abandoned the mark of the applicant.
FAQ’s about trademark objections
Is there any government fees for filing the trademark reply?
No, there is no government fees for filling the reply, if TM-M is required to be filed then fees of Rs 900/- has to be paid.
When the trademark journal gets published?
It gets published every Monday on the IP website (www.ipindia.gov.in)
Within how many days trademark gets examination report issued?
There is no time limit prescribed, but usually department takes 1-2 months to issue the examination report.
Can trademark be removed without giving opportunity to owner?
No, opportunity of being heard has to be provided at every stage of objections.
What is the fees for filing Public opposition and counter statement?
The government fees is Rs 2700/- and is filed in form TM-O
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