As per section 21 of the trademarks act, 1999 any person can file a notice of opposition. A person can be a trust, partnership firm, company, or individual. If more than one person wishes to file a 'Notice of Opposition' against the same trademark, they can combine their notice as opponents. A person can file the Notice of Opposition if a mark is similar or is already an existing and registered trademark. When the trademark is descriptive or is devoid of distinctive character. A person may initiate an opposition proceeding if the application for the mark is made with bad faith, or it is used to deceive the public or call confusion, or the trademark is prevented by law or is contrary to the law. A person can initiate a position proceeding if there is a prohibition on such trademark under the Emblem and Names Act, 1950 or if it hurts the religious feeling of any class or section of people. If the mark is customary in the current language or is already in the established practice of business then also the opposition proceeding can be initiated.
3 months’ time limit is given from the date of publication of the trademark to file the trademark Opposition and it can be extendable by one month. The notice has to be filed at the trademark registry where the application for the conflicting mark has been filed.
A person can file a notice of opposition through a Form TM-O along with a fee of rupee 2700. The notice of opposition will have the application number against which position is sought. It will comprise the name of the applicant for the trademark and the proprietor of the earlier trademark along with details like his name, address, and the details of his rights and trademark. The details of the goods and services that are listed in the trademark against which the opposition is sought must be mentioned. The notice should have the ground on which the opposition is based on afterwards a counter-statement will be verified at the foot by the opponent.
The Notice of opposition has to be filed within 4 months from the date of advertisement, it can be filed by any person. A counter-statement to the opposition has to be filed by the applicant within 2 months of the receipt of the notice of a position. The applicant will be considered to have abandoned the trademark application if he does not file the counter-statement within 2 months. To review and check if all the formalities are met or not it has to be first sent to the registry, then the registry will search the counter statement on the opponent.
After the opponent receives the counterstatement he must find the evidence in support of a position by the way of an affidavit within 2 months that is extendable by one month of receiving the counter statement. If the opening does not wish to file an affidavit but wants to rely on facts he has an option to write to the registrar stating the same and choose to waive filing an affidavit. The same has to be informed to the other party also.
After receiving the receipt of the evidence of the opponent, the applicant has to submit the evidence in support of the application, the filing of evidence must be done within 2 months of receiving the evidence or imitation of waiver by the opponent. The applicant can also choose to waive his right to submit any evidence.
The opponent will be then given a month, which is extendable by one month to Submit evidence in reply to the evidence in support of the application.
After this hearing takes place, it is based on all the applications and evidence on statements filed. The registrar will decide whether the trademark is to be accepted or not after hearing both sides. Once a hearing takes place the register decides whether the application shall be rejected or the trademark will be registered.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.
