When you wish to register a trademark, the whole trademark registration passes through several stages. Trademark opposition is one of them. Trademark Opposition in India comes at a stage after the registrar has approved the trademark application on the distinctiveness factor and publishes the trademark in the journal for the third-party opposition.
Any person can oppose a trademark application filed by an applicant for various reasons during the trademark application stage.
According to Section 21 of the Trademark Act, 'any person' can oppose a trademark, irrespective of his commercial or personal interest in the matter.
A trademark can be countered by filed by a customer, member of the public or competitor, or any other person. Also, the person filing the trademark opposition needs to be a prior registered trademark owner.
After the trademark advertisement in the Trade Marks Journal, any person can oppose the trademark registration for three months (which may be extended by a period not exceeding one month). Trademark opposition filings can be done only at the Trademark Registrars' office and cannot be taken directly to a Court or the Appellate Board (IPAB).
If a trademark opposition is successful, the registration of the trademark will be refused. If the trademark opposition application is rejected, the brand will be registered.
Any person who wishes to file a notice is required to mention important specifics concerning, details of the opposed application, details of the opposing party and grounds for opposition. Such notice must be filed within 4 months of the advertisement of the mark. If the Registry is satisfied with the notice, it will then serve a copy to the concerned applicant. The applicant has 2 months from date of receipt of the notice to file a counterstatement or else the Registry may deem the application of the trademark as abandoned.
The opponent upon receiving a copy of the counterstatement is required to file evidence by way of affidavit within 2 months (which is extendable by 1 month) from the date of receipt of the counterstatement. If the opponent fails to do so, the opposition will be treated as abandoned and the application may proceed towards registration. Similarly, the applicant is also provided with 2 months for filing similar evidence with the Registrar. The Registrar may, upon request extend the period of filing by 1 month. If applicant does not wish to submit any evidence and wishes to instead rely on facts already stated in the counter statement, should be intimated in writing to the Registrar and the opponent. If required, the parties may file additional evidence subsequently.
Upon completion of the evidence stage, the Tribunal generates a hearing notice specifying the date on which the parties will be heard. Such a notice must be sent by the Registrar at least 1 month before the date of first hearing. Within 14 days from the receipt of such notice, whoever intends to appear will notify by submitting the relevant form to the Registrar. Any party who fails to do so may be treated as not desiring to be heard and the matter may proceed accordingly. After hearing the opponent and the Applicant, the Registrar is liable to decide whether the concerned application of trademark is refused or has the opposition been cancelled.
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