Trademark

Understanding the Importance of User Affidavit in Trademark Registration

calendar20 Mar, 2023
timeReading Time: 5 Minutes
Understanding the Importance of User Affidavit in Trademark Registration

Registration of a trademark entails several procedures and documents that must be submitted to the Trademark Registry; some of these documents are not even stated directly in the Indian Trade Marks Act, 1999 and Trade Mark Rules, which are formed for this object from time to time. Scroll down to check the importance of User Affidavit in Trademark Registration.

What is User Affidavit?

A statement of use, commonly referred to as a user affidavit, is a legal document that attests to the use of a trademark in commerce. It is essential as it acts as evidence that the trademark is being used in connection with the products or services stated in the trademark application. The trademark user affidavit has been made a compulsory attachment with all the trademark applications which claim a prior use under the Trademark Rules of 2017[1].

All trademark applications alleging prior use must now include the affidavit or statement of use as a required attachment. If the applicant claims prior trademark use, a trademark user affidavit is required for all trademark registration applications in India. The affidavit must be signed on non-judicial stamp paper while being sworn in front of a notary public or another official with authority to administer oaths.

What Is The ‘User Date’ In An Affidavit?

The word’ user date’ in an affidavit refers to the day the affiant (i.e. the person making the affidavit) started using the in question trademark. This information is usually contained in an affidavit, a legal document that serves as proof of the applicant’s trademark use and is often required as a part of the trademark registration process.

The user date is a critical component in proving the applicant’s prior use of the trademark. Thus it must be precise and supported by evidence. In some situations, the user date can also establish ownership primacy in lawsuits involving trademark rights.

Advantages of User Affidavit

  • It is evidence of the trademark owner’s continuous use of the mark.
  • It can help prevent challenges to the validity of trademark registration.
  • It can assist in enforcing trademark rights against potential infringers.
  • It strengthens the trademark’s position in the market.
  • It establishes the trademark owner’s exclusive rights to use the mark in commerce.

How Does A User Affidavit Or Statement Of Use Relate To Trademark Registration?

The procedure for registering a trademark requires the submission of an affidavit or statement of use. The affidavit, also known as a statement of use, is used to demonstrate that a trademark is actually being in use in commerce as opposed to being registered for future use or being registered for speculative purposes. This is significant since the Indian Trademark Registry only registers trademarks for the marks that have been used or that are soon to be used in business.

The affidavit must include specific information regarding the use of the trademark in commerce. The goods or services the trademark is used for, the dates of first use and first use in commerce, and the type of use of the trademark are all included in this information. A trademark application can be rejected, or an already registered trademark can be cancelled unless a user affidavit/statement of use is submitted. In light of this, it is essential to ensure the affidavit is prepared and submitted accurately and on time.

Importance of Submitting an Affidavit during the Registration Process

The affidavit must be filed as a part of the registration process to avoid any complications or problems with the application.

One of the essential benefits of submitting a user affidavit/statement of use is that it supports the trademark owner’s assertion of ownership. A user affidavit contains a lot of information about trademark use. By providing this information, you can show that the trademark owner has the sole authority to use it in the market and forbid others from using a similar or identical mark.

A user affidavit submission also has the advantage of preventing trademark cancellation or abandonment. Trademark rights can be lost if a trademark is cancelled or abandoned after not being used in business for a while. However, the owner of the trademark can prove that the mark is being used actively in commerce by submitting a user affidavit, which can save the mark from being cancelled or abandoned. It is essential to ensure that the statement of use is completed accurately and submitted promptly to avoid any complications or issues with the applications.

What Should Be Included In A User Affidavit?

The following details should be included while creating an affidavit:

  1. Trademark Identification: The trademark that is the subject of the registration application should be clearly identified in the user affidavit. This includes the trademark’s name and any related slogans, logos, or designs.
  2. First Use Date: The trademark’s first commercial usage should be specified in the user affidavit. This could be the day that the good or service was first offered to clients or sold on the market.
  3. Specifying The Products Or Services: The affidavit needs to list the products or services connected to the trademark. This contains a thorough description of the good or service and how to use it or take advantage of it.
  4. Statement of Continuous Use: The trademark has been constantly used in commerce since the date of first use, according to the user affidavit. Evidence for this claim should be provided, such as sales data, marketing collateral, or client endorsements.
  5. Signature: A person with firsthand knowledge of the events described in the user affidavit must sign the paper.

It is significant to remember that a user affidavit must contain correct and comprehensive information. Any inaccurate or deceptive representations could lead to the registration application being rejected or other legal repercussions. As a result, it is advised to consult a legal expert while creating a user affidavit.

How to Prepare and Submit a User Affidavit?

A user affidavit must be written and submitted during the trademark registration process. A user affidavit is a sworn declaration that attests to the use of a trademark in commerce and aids in proving the mark’s ownership.

Step 1: Compile the Necessary Data: Gather all the data you’ll need to include in the affidavit before writing it. This information covers the trademark’s name, the time it was first used, the products or services it is used for, and documentation of trademark usage. Moreover, make sure you are fully aware of the affidavit’s standards, which may change based on the jurisdiction.

Step 2: Draft the Affidavit: Prepare the affidavit once you have acquired all the necessary data. To help you create the affidavit, you can either utilize a template provided by the relevant trademark office or ask a lawyer for assistance. All of the information presented in the affidavit should be factual and truthful and written in clear and understandable language.

Step 3: Review and Sign the Affidavit: Make sure all of the information is exact and complete before signing the affidavit. Consult a lawyer if you have any doubts or inquiries. Sign the affidavit in the presence of a notary public or other authorized representative once you are confident that it is complete and accurate. Make sure you sign the affidavit in accordance with the guidelines provided by the applicable trademark authority.

Step 4: Submit the Affidavit: The affidavit must be signed and delivered to the appropriate trademark office, along with the necessary fees and documentation. The deadline for submitting the affidavit may vary based on the jurisdiction, so follow it. The trademark office will analyze the affidavit and might contact you if they need more details.

Conclusion 

A user affidavit, which proves the use of a trademark in commerce, is an essential document in the trademark registration procedure. To ensure a smooth registration process, it’s critical to comprehend what a user affidavit is, what should be in it, and when it’s necessary. Overall, comprehending and properly composing a user affidavit will speed up the trademark registration procedure and offer your business powerful protection.

Also Read:
Importance Of Claiming A “User Date” In Trademark Registration Application

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