Opposition of Trademark Registration

Last Updated at: October 18, 2019

A trademark opposition is a legal proceeding in which one party attempts to put a stop to a trademark application from being granted. In most cases, this party believes that the registration of the trademark will damage its rights in one way or another. It takes up to two years to register a trademark, and all new applications are advertised in a government journal, so the party often finds out about the mark.

Section 21 of the Trademarks Act, 1999 covers what happens in case someone opposes the registration of a trademark. Here is the procedure to be followed:

a) The opposition has to be made in writing, in the form of a notice, to the Registrar of Trade Mark within 4 months of advertisement of the trademark registration.

b) The Registrar will pass on this notice to the Applicant.

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c) Within two months of receiving the above, the Applicant should send a counter-statement to the Registrar, re-affirming his grounds for the application. If he fails to do so, it is assumed that he has forfeited his trademark.

d) The Registrar will serve a copy of this Counter-Statement to the person giving the opposition.

e) Any evidence upon which both the parties rely should be submitted to the Registrar. If they desire an opportunity to be heard, the Registrar will give them so.

f) After such hearing of the parties, the Registrar shall decide the validity of both the claims and decide whether or not to uphold the registration and if the same should be subject to any limitations.

g) The parties are to incur the cost of sending the notices and counter-statements, if they don’t reside in India.

h) The Registrar may, on request, permit correction of any error in, or any amendment of, a notice of opposition or a counter-statement or such terms as he thinks just.

i) All of the above submissions have to take place in the prescribed manner and within the prescribed time limit.

If any of the Parties are unhappy with the above decision, they may appeal, in the prescribed manner, to the Intellectual Property Appellate Board, within three months of gaining the knowledge of such decision. The Appellate Board, may, at its discretion, entertain late appeals, if sufficient grounds for the same are proved.

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