So your trademark is proposed to be used?
A lot has already been written about trademark registration in India on internet. But still many people are unaware about the importance of usage details and priority claimed while filing for a trademark in India. According to Trademark mark Act 1999, an applicant may even file for a trademark application in India, even if he/she is not using the trademark initially but have an intention to use the trademark applied later on. It means the trademark registry allows the name or brand reservation.
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Such applications which are based on marks that are proposed to be used also proceed normally and are examined by the examination once accepted without any technical error on record.
We receive a lot of trademark objection reply filing request everyday. Most of the trademark objections raised by examiner are based on section 9 that is the mark applied is similar to existing trademarks on record or being descriptive in nature.
Sometimes even though there is no objection over the date of usage of the applied trademark, many attorneys do not file affidavit of usage required to change the date since the applicant has started to use its trademark.
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Your trademark application may proceed normally even if you do not file for affidavit of usage for taking on record the usage details about the trademark applied; a trademark may be struck off from the trademark record in case the trademark status is not changed to a usage date before expiry of 5 years. However, this is rarely observed as trademark registry seldom takes suo motto action over the same.
But this matter of date may prove to be heavy burden later on, In case someone files for application for the removal of your trademark on account of non-usage. This is also a ground that people emphasis in case of trademark opposition proceedings.
Hence even if your mark is taken on record for trademark registration it is the duty of any trademark attorney to guide the client about the implications of filing a trademark that is proposed to be used. A bonafide usage of the applied mark do plays a pivotal role in the trademark registration in India.
As the above mentioned implications are very serious may hamper the brand name existence and may also result in trademark removal.