Once a Trademark application i.e TM-A is filed, the Trademark application is set open for scrutiny. The Trademark application is judged on two parameter , firstly, whether the basic application content or the basic requirements required for filing a Trademark application are fulfilled or not. This means that application must have proper applicant name, proper document attachment, correct image description etc. Basically the Trademark application shall have all the basic pre-requisite formal requirements fulfilled.
In case there is any fundamental or formal error detected in the Trademark application after the application is filed, the examiner marks and state the deficiency in formality check fail status, this letter means that application has failed the very first basic check and applicant now has to correct the said deficiency as stated in formality check letter.
These deficiencies can have fees associated with it or may be without fees, in case any deficiency such as wrong class, wrong classification description is stated generally such error can be cleared only by way of filing TM-M with fees.
Formality check fail is essentially fundamental error in the application that is mandatorily to be obviated in 30 days from date of actual receipt of the letter.
Formality check fail must not be confused with Trademark examination. As Trademark examination is a stage where Trademark application is judged upon the substantive legal questions applicable to the mark.
Such questions may be related to substantive examination of the mark based on similarity or conflict with the existing mark or is the mark descriptive in nature or falls under the purview of section 9 of the Trademarks Act.
Whereas Formality check fail is just a preliminary scrutiny about the Trademark application, it is nowhere related to Trademark substantive examination and once the Trademark application is formality check pass than only the application proceeds to substantive examination, where Trademark status is generally shown as objected.
Therefore we can say that Formality check pass or Formality check fail is a step before Trademark status is objected.
This means once you have replied for formality check fail letter , this does not mean that stage of Trademark examination is completed but this stage will come only once the formality check fail reply is correctly submitted and then application will proceed to further examination that is Trademark examination on basis of substantive law, which is indicated when examination report is issued and Trademark application status is reflected as Trademark Objected.
A good Trademark attorney ensures that there do not arise any case of formality check fail and Trademark application is timely granted.
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