Trademark Objection

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Trademark Objection

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Drafting and filing of reply for the objection raised by Trademark Examiner. Exclusive pricing for trademark applications filed by IndiaFilings.

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Description

Trademark Objection

Trademark objection happens to be one of the initial stages in the Trademark registration process. Trademark objection does not mean a straight denial; instead, the trademark registrar seeks a valid reason or explanation about the mark and registration. An opportunity is given to the applicant to explain how the said trademark fits the criteria to avail valid registration.

In the event of a trademark objection, a comprehensive reply needs to be filed within a month from the objection’s date of issuance.

There are several reasons for Trademark objections like similarity with an existing trademark, offensive trademarks, absence of uniqueness, etc.

Often, during the trademark registration process, the registrar raises objections to the applied trademark if it violates the trademark registration rules and laws.

Trademark registration creates an identity for the brand and differentiates it from other available services or products that are available in the market. Protecting a Trademark is very important if one wants to maintain its distinct identity. But there are some cases when someone would stop you from claiming your right. Hence, we need to understand the concept of Trademark objection.

Top Reasons for Trademark Objection

Here are some top reasons why a trademark would get objection:

Trademark applications can get objections under more than one grounds. Following are some grounds on which an examiner can object to the Trademark registration:

The grounds of refusal for Trademark registration can be divided into two parts :

  • Absolute grounds of refusal – refers to the incapability of marks to be distinctive or graphically presented.
  • Relative grounds of refusal – are always in connection with earlier trademarks and their related rights.

Deceptive Marks

Any trademark that is likely to confuse the people because of something inherent in the mark itself or its use, like nature, quality, or geographical origin of the goods and services.

An objection as to deceptive trademark can be overcome by filing Form TM-16.

Lacks Distinctive Character

Trademarks that are not capable of differentiating between one person’s goods and services from those of another are devoid of any distinctiveness and thus can get objection under absolute grounds for refusal of trademarks.

Existence of a similar trademark

If there are similar or same trademarks of different trademark owners on records regarding the same or similar description of goods or services, then an objection can be raised.

False or vague specification of goods

Suppose the specification of goods or services happens to be too vague or encompasses a large variety of goods or services. In that case, an objection can be raised as follows by the trademark registrar:

“The specification of goods/services mentioned in respect of class xx is very vague and wide. You should provide exact items in respect of which the trademark is sought to be registered by filing a request on form TM-16”.

Incorrect address on trademark application

In case the trademark applicant has not mentioned the principal place of business correctly, or he has not mentioned the address for service in India. An objection can be raised as under:

“The Principal Place of business of the applicant should be brought on record by filing a request on form TM-16” or “The applicant’s address for service in India should be brought on record by filing a request on form TM-16, since the applicant has no principal place of business in India.”

Incorrect name of the applicant

The applicant must enter the name in the application correctly. In case of incorrect name on the trademark application, the examiner would object as follows:

“The application appears to have been filed in the name of a partnership firm, names of all Partners of the firm should be brought on record by filing a request form TM-16.”

Incorrect trademark form

If the trademark application is not made on a proper form, an objection will be raised by the examiner as follows:

“The application is made on Form TM-1, for certification mark in respect of goods or services falling in a class, the form of the application should be corrected as TM-4 by filing a request on form TM-16.”

Trademark examination report

  • After the trademark registration application is submitted and examined by the trademark officer, an examination report is sent to the trademark applicant. It is also put up on the trademark office website along with details of the trademark application.
  • The applicant or the authorized agent then gets a chance to submit a reply to the trademark examination report with a rebuttal if there is an objection by the trademark examiner.
  • The response is then considered, and if the objection can be waived off based on the applicant’s response, then the trademark application gets accepted for registration. The trademark gets published in the journal.

Reply to Trademark Examination Report

  • The response for an objection in the trademark examination report can be submitted by the applicant or by an agent who the trademark applicant authorizes.
  • This reply can be submitted online through the trademark office website or even in person or by post.
  • Any affidavit and support documents are also to be submitted along with the reply to the examination report.

In case of objections as to formality requirements, the applicant should comply with the conditions that are desired by the officer.

For instance :

Suppose the trademark applicant has called for the consent of a person whose portrait appears on the trademark. In that case, the applicant must submit the person’s consent in writing with the supporting documents or state that the picture appearing on the trademark is not of a specific person but is a generic image.

The objection can be caused due to the goods or services mentioned in the application do not fall in the correct trademark class; the trademark applicant may file a request to correct the class or the state as per the classification of goods or services published by the registrar have been rightly classified.

However, getting proper legal advice is necessary for the correct classification of goods and services before submitting a reply to the examination report for objection as to the wrong category of trademark class.

In case of objection as to non-distinctiveness of the trademark, the applicant can submit a reply to examination report establishing that the trademark applied for registration is capable of distinguishing the applicant’s good or service, pr the brand has acquired a distinctive character because of its extensive use concerning relevant goods or service, before the date of application.

Suppose the trademark has acquired distinctiveness by its extensive use. In that case, the applicant should file an affidavit as evidence of using the trademark and its supporting documents.

Suppose the objection is on the relative grounds of refusal because of identical or similar trademarks regarding similar goods or services. In that case, the applicant can also produce consent or no consent objection from the proprietor of marks cited as conflicting in the examination report.

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