Opposition to registration of Trade mark: Filing opposition on accepted and advertised Trademark
What if someone has filed an application for registration of a trademark which is looks like your registered trademark or just slightly changed or modified to falsely use your brand image or goodwill?
Sometimes it happens that registrar accept an application for registration of a trademark which is looks like similar or identical with your registered trademark but due to some tricky modification or slight changes registrar accepted the application with or without any objection but that applicant can use your market reputation and sometime malign your image too. In such cases you can file an opposition to registration of trade mark. You can file an opposition only after advertisement of conflicting application.
“Opposition” means an opposition to the registration of a trademark or a collective trademark or a certification trademark, as the case may be and includes an opposition to grant of protection to an international registration designating India and opposition to alteration of registered trademark;
A notice of opposition to the registration of a trademark shall be filed within four months from the date of publication of the trademark journal in which the application for registration of the trademark was advertised or re advertised.
A copy of notice of opposition shall be ordinarily served by the Registrar to the applicants within three months of the receipt of the same by the appropriate office: the applicant shall send to the Registrar, in the prescribed manner a counter statement of the grounds on which he relies for his application, and if he does not do so he shall be deemed to have abandoned his application. If the applicant sends such counter statement the Registrar shall serve a copy thereof on the person giving notice of opposition.
Provided that where the applicant has already filed the counter statement on the basis of the copy of notice of opposition made available in the electronic records on the official website, the requirement of service of copy of the notice of opposition to the applicant shall be dispensed with.
Where a notice of opposition has been filed in respect of a single application for the registration of a trademark for different classes of goods and services, it shall bear the fee in respect of each class in relation to which the opposition is filed. Where an opposition is filed only for a particular class or classes in respect of a single application, the application for remaining class or classes shall not proceed to registration until a request for division of the application together with the divisional fee is made by the applicant.
Any evidence upon which the opponent and the applicant may rely shall be submitted in the prescribed manner and within the prescribed time to the Registrar, and the Registrar shall give an opportunity to them to be herd, if they so desire. The register shall, after hearing the parties, if so required, and considering the evidence, decide whether and subject to what conditions or limitations, if any, the registration is to be permitted, and may take into account a ground of objection whether relied upon by the opponent or not.
Where a person giving notice of opposition or an applicant sending a counter statement after receipt of a copy of such notice neither resides nor carries on business in India, the Registrar may require him to give security for the costs of proceedings before him, and in default of such security being duly given, may treat the opposition or application, as the case may be, as abandoned. The Registrar may, on request, permit correction of any error in, or any amendment of, a notice of opposition or a counter-statement on such terms as he thinks just.
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