A Trademark is a crucial part of Intellectual Property Rights. One can find a Trademark in the form of a name, slogan, and symbol, or any numerical. Products and services under Trademark protection able to cement their place even in the most competitive market. Trademark gives them a unique identity, thereby ensuring growth for a company. The trademark protection only becomes legally enforceable when it is registered & it is utilized for a commercial intention. Therefore, it imparts certain rights to its owner, which are also known as intellectual property rights. A registered trademark rejoices several rights that ensure end to end protection against the individual who intends to copy, sell or distribute such trademark without the owner’s consent. When a person drops an application for trademark registration, the same might go through given two phases. They are -Trademark Objection and Trademark Opposition
An Outlook on Trademark Objection and Trademark Opposition
The trademark objection and trademark opposition often come to light whenever the proposed trademark is found to be non-legit on the ground of rules under Trademark registration, or it seems a perfect imitation of an existing trademark. Both the terms, i.e. “objection” and “opposition”, might seem identical, but both adhere to different meanings and legal remedies during trademark registration.
Therefore, it is imperative to understand these terms appropriately. In this write-up, we will closely examine the points of differences between Trademark Objection and Trademark Opposition.
What is the Trademark Objection?
Trademark Objection refers to a legal process that comes to effect after applying for trademark registration. Under this process, the examiner might raise some objections after checking the application. But, such objection doesn’t mean that application for a proposed trademark shall confront rejection.
The concerns under Trademark objection are only raised to seek specific clarifications or explanations from the applicant regarding the mark. The objection is only shared with the applicant when an examiner has strong reasons to believe that the proposed trademark lacks certain traits that make it eligible for registration.
Nonetheless, the trademark opposition often comes to light whenever the examiner concludes an unsatisfactory result after examining the application for the proposed trademark and stamped the same with his/her disapproval stating “Objected”.
After this, an examination report is communicated with the applicant, stating the same. Upon receiving the report, the applicant will get a fair chance to share its concern with authority and clarify why the proposed trademark should receive a valid registration.
Reasons why Trademark Objection May Come To Effect
The trademark objection may come to effect in the given scenarios.
In some cases, an application regarding trademark registration is filed by Trademark Attorney on the applicant’s behalf. In such cases, a form, viz TM-48 and an authorization letter, is usually filed. In case if the applicant mistakenly skips this requirement, the authority might object to the same.
To resolve such issue, the applicant is required to share its reply in writing with authority in a legitimate manner. After intimating the authority, the examiner may intimate the applicant or even call him/her to hear about the proposed trademark in question. The application shall only proceed for further processing after getting approval from the concerned examiners.
What is Trademark Opposition?
Post validation of the proposed trademark during the hearing, the application status will change from “Objected” to “Accepted and Advertised. Now, your trademark will find its way to the Trademark Journal, which is available to the public domain. Anyone having an issue with such a trademark can file a Trademark Opposition against it.
Any objection in this context can be raised by the following:-
- Partnership Firms,
- Owner of a previous trademark registration which has an identical trademark for similar goods,
- Prior user
Grounds on which Trademark Opposition may come to Effect
The trade opposition may come to light if:-
- The proposed trademark is an imitation of an already existing registered trademark
- It lacks certain traits that make it unique from the rest.
- The proposed trademark adhere to descriptiveness.
- The registration application is prepared in bad faith.
- The mark is confusing to the public domain, or it is against the law.
- If the mark is non-unique in the established business practices or present language.
- The mark is forbidden as per the Emblem and Names Act, 1950
- The mark adheres to traits that hinder the religious sentiments of a particular society.
Upon receiving the objection notice, the applicant must respond aptly with legitimate evidence within two months of receiving such a notice. This response is known as a counter-statement in a legal purview. If an applicant does not respond in the given timeline, the application may confront cancellation.
The party who objects proposed trademark will also put its proofs up front against the applicant. After examining the facts provided by either of the parties, the Trademark Registrar will take a decision whether to register or disapprove the proposed trademark.
Trademark Objection and Trademark Opposition: Key Differences
In light of the above information, we can conclude that:
- The Trademark opposition comes to light after the phase of trademark objection.
- The Trademark Objection is put upfront by the examiner itself, whereas the trademark opposition is referred to an objection raised by the public domain against the authenticity of the mark.
- The response against the Trademark Objection should be lodged within one month of receipt of the Examination Report. Conversely, a response of the Trademark Opposition must be registered within two months of the receipt of the opposition notice.
- The fee is imposed as per the prevailing law for submitting the reply for Trademark Objection. However, that is not the case with the trademark opposition.
Both Trademark Objection and Trademark Opposition are essential stages of an application for the proposed trademark. One can avoid confrontation with these stages through a cautious and deliberate approach. But not every individual is backed by professional skill, which is highly imperative in such cases. Thus, it is advisable to take advice from the trademark attorney before drafting your response in such circumstances.
Read our article:Know How to File Trademark Objection Reply