The Trademark Application, is when administered by the Registrar of Trademark, goes for advertisement in the Trademark Journal. The publication in the Trademark Journal is done to give an opportunity to the public to file for Trademark Opposition. The Trademark Opposition is a necessary rule under the Trademarks Act, 1999. Whenever, the Registrar of is completely satisfied and had accepted the Trademark application, the Registrar of Trademarks is required to do Advertisement of Trademark Application in Trademark Journal. In the article, we will discuss in detail the Advertisement of Trademark Application in the Trademark Journal.
What is a Trademark?
As per the Trademarks
Act, 1999, a Trademark is a symbol, numeral, name, ticket, label,
device, brand, word, sign, heading or words by which a corporate identify the
products or services owned by itself and are able to distinguish its products
or services from other products or services manufactured, or produced by other opponents
in the market. The primary purpose of Trademark is to establish
in the mind of the customer a link between different products or services that
the company offers and then differentiate them from other products or services
supplied by different opponents in the market.
A Trademark can also consist of any signs or symbols which are capable of being represented graphically. The Trademark must be able to distinguish between the goods or services of one entity from the products or services of other entities in the market. The owner of the Trademark should try to opt for such a Trademark, which is not yet used by any other opponent in the market. In case if such a Trademark, which is unique and new, and is not used by any entity or person, goes for Registration, then the Registrar of the Trademark can directly do the Advertisement of Trademark Application of such a Trademark in the Trademark Journal.
The owner of the product or services and business go for filing of Application for the Registration of Trademark with the Trademark Registry. The Registration of Trademark enhances the rights of the owner by providing legal evidence and ownership of the product or services. A registered Trademark is a proof of the exclusive right of the Trademark owner and hence, allows the owner of Trademark to sue any person infringing the usage of Trademark. The registered Trademarks with the Trademark Registry are authorized to use ® symbol.
When is Advertisement of Trademark Application done in Trademark Journal?
The Registrar of the Trademark, after concluding the proceedings of hearing of the Trademark Opposition, can go for Advertisement of Trademark Application in the Trademark Journal. The Advertisement of Trademark Application is done to provide an opportunity to raise objections, if any, to the Application of Trademark. The Advertisement of a Trademark Application can be done before or after its acceptance by the Trademark Officer. Once the Registrar of Trademark accepts the Registration of Trademark application, the Trademark Registrar is required to advertise the Trademark Registration application, which is approved to be published in the Trademark Journal.
An application of Trademark is examined at different stages of the Registration of Trademark for checking the authenticity or validity of the Trademark. When an application of Trademark Registration is assigned to the Examiner of Trademark, he/she scrutinizes the Application of Trademark as per the provisions provided in the Trademarks Act, 1999, particularly as per Section 9 and Section 11 of the Trademarks Act, 1999. The Examiner, after scrutiny of the Application of Trademark, raise objections in the application if required. The applicant is required to remove all the objections in the Application of Trademark.
After this, the Application of the Trademark Registration goes to the next stage, i.e., Advertisement before Acceptance or Accepted and Advertised in the Trademark Journal.
Advertisement before Acceptance
The Trademark status of “advertised before acceptance” (ABA)infers that the Trademark is advertised in the weekly Journal of Trademark; however, there are certain reservations associated with the Trademark. After the Advertisement of Trademark Application in the Trademark Journal, the Opposition of the Trademark period begins. The period of Trademark Opposition is for4 months. The applicant of the Application of Trademark Registration during the period of Trademark Opposition has to wait and watch for any type of Opposition occurs related to the Trademark.
An application of Trademark Registration can be advertised in the Trademark Journal before acceptance (ABA) or as accepted (AAA). The Trademark Act, 1999, in Section 20(1) provides for provisions related to Advertisement of Trademark Application before acceptance, where the Trademark Office considers that the Section 9 and Section 11 of the Trademark Act, 1999, is applicable to the said Application of Trademark. In case the Office of Trademark is not convinced with the non-similarity or distinctiveness of the Trademark, then the Trademark Examiner can order to advertise the Trademark ‘before acceptance’ in the Trademark Journal. Section 20(1) of the Trademarks Act, 1999, where the Trademark Office thinks it is beneficial to advertise the Application of Registration of Trademark before acceptance, the Office of Trademark can do so in some exceptional circumstances only.
When Trademark Opposition is filed against an application of Registration of Trademark, which was “advertised before acceptance” by the Registrar of Trademark, it becomes a ground for refusal of Trademark on the line that the Office of Trademark was not completely convinced on the Registration of such Trademark. In case there is no Opposition of Trademark, then there remains no difference between a Trademark advertised before or after acceptance as, at last, both the Trademarks were registered without any discrimination by any third party.
Hence, of all different applications of Trademark filed in the Trademark Journal, only a very small amount of applications is published before acceptance by the trademark Office. Generally, an application of Trademark after the acceptance of Registrar is published in the Trademark Journal.
Advertisement after Acceptance
At times straight after examination by the Registrar of Trademark, the Trademark might get “advertised as accepted” in the trademark Journal. The Advertisement of Trademark Application in the Trademark Journal as accepted means that there are no objections in the Application of the Trademark, and the Office of Trademark deems the Trademark as fit for Registration under Trademark Registry. However, this is not the actual scenario we all come across frequently while Registration of Trademark. When the Trademark Office is absolutely convinced about the uniqueness and registrability of the Trademark, then the Trademark is ordered by the Office of Trademark to be “advertised as accepted” in the Trademark Journal.
In case the Trademark is advertised as accepted does not mean that there is surety of Application of Trademark being accepted, and Trademark will be registered in the Trademark Journal. There is no such guarantee of Trademark Registration by the Office of Trademark. The Trademark advertised as accepted has the possibility of being opposed and then get refused by the Office of Trademark. The advertisement of a Trademark as accepted just simply means that the Office of Trademark is convinced about the chances of the Registration of Trademark in the Trademark Journal.
When the Trademark status on the official website of Intellectual Property reflects “advertised as accepted,” the Trademark then gets advertised in the Trademark Journal. After the advertisement in the Trademark Journal, a time period of 4 months is given to the common public for the Opposition of Trademark. During this time period, the applicant of the Application for Registration of Trademark is required to wait and watch to check that whether there is any Opposition of the Trademark or not.
What is the purpose of the Advertisement of Trademark Application in the Trademark Journal?
The purpose of an Advertisement of Trademark Application in Trademark Journal is to provide comprehensive information about the Application of Trademark, which is advertised to the common public at large so that the public can get all the information they require about that particular Trademark from the Trademark Registry. When an advertisement fails to provide complete information about a Trademark or gives inappropriate or incorrect information about a Trademark, then an effective Trademark Opposition can be filed by the common public. The Trademark Opposition by public leads to cancellation of the Advertisement of the Application of Trademark and re-advertisement of the Trademark application in the Trademark Journal before granting a Certificate of Trademark Registration to the applicant.
Read our article:Grounds for the Refusal of the Trademark Registration
What is a Trademark Journal?
An application of Trademark goes through numerous phases; one such phase is the publication of the Trademark Registration application in the Trademark Journal. The Journal of Trademark is the Official Gazette of the Trademarks Registry of India. Whenever a Trademark Registration application is published in the Trademarks Journal, it principally communicates the basic intention for Registration of Trademark and correspondingly grants an opportunity to the third parties to file for Opposition of Trademark Registration.
The Application of Trademark Registration scrutinized by the Examiner of Trademarks Examiner. The Examiner of Trademark is when satisfied that the application is in compliance with the formal requirements, as well as the substantive features and characteristics as mentioned in the Trademarks Act, 1999, are also provided by the applicant, the Examiner will further go for the publication of the Application of Trademark in the Trademark Journal.
It is significant to note that an Advertisement of Trademark Application in the Trademark Journal does not in any way guarantee the Registration of the Trademark. The advertisement in the Trademark Journal simply means that the Trademark Examination Officer feels that the Trademark has satisfied all the basic requirements prescribed under the Trademarks Act, 1999.
The details which are required to be published in the Trademark Journal are as follows:
- The Application Number;
- Date of filing of the application;
- The class in which the Trademark comes;
- The name of all the applicants;
- The details of the Trademark;
- The Priority claim (if any);
- The specification of the goods or services;
- Applicant’s address for service including his agent’s detail
- Class & specification of products or service
- The Statement as to usage of the Trademark
- Appropriate office where the Trademark was filed;
- The limitations and conditions on which the application can be accepted;
The sample of an Advertisement of Trademark Application in the Trademark Journal is as follows:
The publication of the Trademark Journal is now done online on the IP India website. The Trademark Act, 1999, provides for the provisions related to enabling the publication of the Trademark Journal on the Internet or in any other electronic medium. Any Trademark advertised in the Trademark Journal, if it is put on the Internet or in paper form after the date of publication of Trademark, will be considered to have been advertised in the Journal. The date in the Trademark Journal is considered to be the date of publication for many purposes, most significantly to determine the period for filing the notice of Trademark Opposition.
What information is contained in the Trademark Journal of India?
The head office of the Trademark Registry publishes the Trademark Journal. From the website of the Trademark Registrar website, the Trademark Journal can be accessed free of cost. The information contained in the Trademark Journal is as follows:
- The Public Notices and Notifications, if any, issued by the Trademark Office;
- Trademark applications which are ordered to be advertised before acceptance or are already accepted;
- Re -advertisements of an application of Trademark, in case of an order for re-advertisement is given by any competent officer;
- Further notification or corrigenda with regard to an earlier published application;
- The total list of trademarks, which are registered, removed, renewed, the application is withdrawn, etc.
- Any changes Post Registration of Trademark including any Assignments or transmission recorded;
- The international non-registered names as issued by WHO from time to time.
- Any other information as thought essential to be published in Journal from time to time.
What is the primary purpose of a Trademark Journal in India?
The primary purpose of publication in Trademark Journals are as follows:
- To provide an opportunity and a mechanism for other owners of Trademark, either in the similar or dissimilar areas of business, who might face a conflict of interest from the Registration of a new Trademark.
- To act as the base for the prior search of Trademark before Registration. An applicant of the Application of Trademark Registration can use the Trademark Journal to check for identical or similar Trademarks already existing or registered with the Trademark Registry.
The Advertisement of Trademark Application in the Trademark Journal is done to give an opportunity to the common public at large to file for any Opposition of Trademark opposing the application of Registration of Trademark. The applicant of the Trademark Registration application should provide all the necessary details in the application. The Registrar of Trademark will examine the Application of Trademark Registration and, if satisfied, will do the Advertisement of Trademark Application for Registration in the Trademark Journal. The filing of the Application for Registration of Trademark is a lengthy and time-consuming process. We at Corpbiz have skillful experts to guide you with the process of Registration of Trademark. Our experts will assist and guide you throughout the process of Trademark Registration. Our experts will ensure the successful and timely completion of your work.
Read our article: Trademark Infringement: Meaning, Types and Remedies