Trademark registration in India is based on prior to use and first to claim. This means that the person who applies for the brand name in the first place will be given priority for registration.
In addition, when two trademark applications are applied and compared, the person who can claim an earlier date of use may have a stronger basis than the other. Therefore, the importance of the user date in the trademark registration and application is unavoidable.
What Is “User Date” In Trademark Registration?
The user date is the date in which the trademark is being used in commercial transactions whether with or without registration. As stated above, the former user has more importance than the registered mark or application made. Therefore, to claim priority over the brand name, the applicant must provide the user’s date and prove it.
Under the Indian Trade Marks Act, 1999, an online trademark application can be made on any two grounds:
- An Online Trademark Application can be Made
on any Two Grounds
- Claiming User Date
- As Proposed to be Used
If the user’s date is claimed, the applicant will provide evidence of usage on the said date. If the applicant fails to give any evidence for the said date, he should claim the date for which the proof is available.
What Proofs Can Uphold The Prior Use Claim?
When the application claims a specific date from which the applicable trademark is being used, the appropriate documentation as proof of use will accompany the application.
Documents containing the brand name and date, which have public circulation or prove the commercial use of the brand name, may be adopted as evidence for this purpose. Following are the documents to be filed with the application to claim the user date:-
The user’s affidavit must be attached to the application for online trademark registration in India. The applicant referred in the affidavit as a delegation that the facts claimed in relation to the date announced and the use of the brand name are true. The affidavit shall be notarized after the suitable application of Stamp Duty Charges. The user’s affidavit will be provided along with any other proof given below.
Invoices and Bills
Invoices issued to a consumer should be presented. In addition, bills received for any expenditure such as purchase of raw materials, hiring of services in connection with trade, bills for publication of brochures and banners etc. can be submitted.
Bills & invoices proof the commercial use of the brand name. If the said invoice or bill is furnished, the applicant should provide at least two invoices for each year from the claimed user date.
Government Registration Certificates
A registration certificate issued by the Government of India or a state or any other authority may support an application as it validates the business or commercial transactions of the applicant.
Many businesses have their presence on the Internet or social media portals. Any registration or any certificate received for the domain can be presented there. Since many businesses only work through social media channels, a snap shot or promotion of the post can also be counted to support the claim.
Publication to the Public at Large
Any announcements, advertisements or announcements circulating on a public platform in newspapers or in any other way are also a valid proof to establish this claim. However, the publication must have a published date and brand name.
If the applicant is not able to submit any of the above documents as an attachment to an application, the application must be made as “proposed”, which means that the date of application as the priority date will be considered.
What Are The Benefits Of Claiming User Date?
The below discussed are the advantages of claiming ‘User Date’
Distinctiveness to Mark
A descriptive mark cannot be incorporated, but an exception is when a descriptive trademark assumes a secondary meaning in the market concerned; Mark assumes a distinction and identity in the market. Thus, prolonged usage makes the mark distinct and adds a support to an application.
Provides an Exclusive Right to Trademark
The Trade Marks Act prohibits a registered owner from interfering with the user rights of a former user. It is made clear through the decision that prior user registration may have priority and at the same time it prevents a third person from trademark registration or infringing on a mark that is similar to the former company or individual.
Dealing With Objections and Proceedings
The first use is an effective basis for claiming authority over protection. During an objection or opposition to a third party, the former user will have the upper hand over the other. If the date of the user is not mentioned in the application, the applicant cannot claim during the proceedings.
Prior Usage and Passing Off
Passing off is considered a right that protects unregistered marks against registered marks. The Act states that the former user can take action against other users for closure, including a registered user using the same trademark or brand name. However, the former user has to prove the user date of the said brand name.
Trademark registration has its perks. To prevent trademark infringement and protect your trademark well, it is always better to state a valid user date in the trademark registration application. A pre-use claim adds value to the goodwill built over the years and makes applicants more strong on the trademark. Therefore an affidavit for such use with supporting documents must accompany a valid claim application.
Such a claim may change the tables in a trademark case. The application date requires a claim for the application date, as the failure will not allow the applicant to receive the benefit of use. During years of use, the value and goodwill created can be passed on to an organization that has never used the brand name or started using in recent times, perhaps even a competitor.
Therefore, instead of waiving the rights and value created over the years, the user’s date will be claimed according to the submission of the user’s proof and the affidavit that has been set. It should also be assured that the user’s date proof contains the date of publication of the issue and the brand name.
Read our article: A Trademark Application for Foreign Nationals: Is it Possible in India?