Trademark Objection

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How to Reply to Trademark Objection?

When an objection is raised, the status of the trademark in the Indian Trademark Registry Online will be marked as “Objected”. The following steps need to be followed to reply to a a trademark objection:

1) Analyze Trademark Objection

The first step involves analyzing and studying the objection carefully, as any ambiguity in understanding can lead to incorrect filing of Trademark Objection Response.

2) Draft Response to Trademark Objection

The next step is to draft a trademark reply which should include the following:

A proper answer to the objection raised with supporting rule of law and precedents and judgments supporting the case.

The differences between the conflicting mark and the mark of the applicant.

Other supporting documents and evidence that validates the response.

An affidavit stating the usage of the trademark in the applicant’s website and social media channels; advertisement in the media; publicity material; availability of trademarked products on e-commerce sites, etc. along with the documentary proof for the same

The response draft is then filed online on the Trademark e-filing portal.

3) Hearing of Trademark Objection

If the response is accepted, the application will be processed further for registration and advertisement in the Trademark Journal. If it is not accepted, or there are additional clarifications sought by the Trademark Examiner, there would be a trademark hearing scheduled and the same will be notified with a notice.

4) Publication In The Trademark Journal

If the outcome at the hearing is positive, the mark will be accepted and will be ordered to be published in the Trademark Journal.

In the event of a negative outcome, the Refusal Order will be passed, explaining the reason for the refusal. The applicant still would have the option to appeal the order by filing a review petition within 30 days from the date of the Refusal Order mentioning the grounds on which the order must be reviewed.

5)Trademark Registration

Once your trademark is published in the Trademark Journal, it will be open to scrutiny for a period of four months. If no third-party oppositions are filed within that period the mark will then proceed towards registration, and the Registration Certification is issued. If an objection is filed the opposition proceedings will take place as per the prescribed rules of the law.

Checklist For A Trademark Objection

The Trademark Examiner scrutinizes the trademark application to make sure the application isn’t in conflict with any trademark rules. A trademark application can face objection for any of the following reasons:

Filing Of Incorrect Trademark Form

If the application is not filed using the correct form an objection would be raised by the examiner. For example, it is Form TM-4 for registration of collective marks for goods and services in any one class. Form TM-51 for registration of a trademark under different classes of goods and services.

Incorrect Trademark Applicant Name

Trademark has to be filed on the true name of the applicant and double-checked for the right spellings.

Usage Of Deceptive And Offensive Terms:

Trademark names that include deceptive terms or that which try to deceive or mislead customers with false descriptions of products or services will be rejected. For instance, an entity branded “Vanilla chocolates” that sells chocolate flavours may be deemed deceptive. At the same time, applications registering for trademarks containing offensive terms will be rejected.

Insufficient Information On Goods/Services:

When the trademark application fails to mention in brief the products and services of the business, it is highly likely that the Trademark Examiner may reject the application due to the vague information.

Types of Trademark Objections

There are two different types of Trademark Objections in India

1) Substantive Objections

The Following objections fall under substantive examination

Objection Under Section 11 of the Trademarks Act

It is basically an objection that an Examiner raises in case he is of the opinion that there exists similar mark(s) on record already that may be phonetically similar or share some common part with your applied mark. In this objection the Examiner list out all those marks and give you an opportunity to cite the differences and put forward the unique point with respect to your marks in comparison to the cited marks.

Objection Under Section 9 of the Trademarks Act

It is basically an objection that is raised when your applied Trademark use some common name, surname, name of any geographical location or any such representation that is common in terms of figures and another objection that is commonly raised under section 9 is over the mark that are descriptive in nature of suggest the kind, quality or any inherent characteristics of the mark. These objections must be dealt carefully.

2) Formal Objections

The Following objections fall under formal examination

Objection over the TM-1

This objection comes into picture in case there is any formal mistake in the filing of trademark application.

Objection over Class Description

This objection is generally raised in case the description mentions wrong goods or mentions too many goods or services, or the description is not in accordance to nice classification.

Objection over Power of Attorney

Sometimes the stamp paper is not proper or the signatures of the authorized signatory are not properly visible. This may lead to an objection and the Examiner might ask for resubmission of the Power of Attorney.

Objection over the Applicant Details

Sometimes people fail to add the proper proprietor details or miss the names of partner in partnership firms or LLP which might lead to an objection at a later stage.

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