Evidence in Trademark Opposition proceedings is crucial in supporting or challenging a case and can ultimately decide whether a mark proceeds to trademark registration or is refused. This Lawfinity blog decodes the importance of evidence in the Trademark Opposition proceedings in India. On acceptance of a trademark application, it is published in the Trademarks Journal and opens up a 4-month period during which “any person” may file an opposition. This is a very important hurdle in the process of obtaining trademark registration. If a Trademark Opposition is filed, the evidence stage is triggered.

Evidence in Trademark Opposition

The Trademark Opposition procedure is a systematic exchange of claims and evidence between the Opponent (who filed the opposition) and the Applicant (who wants the trademark). This process is governed by the Trade Marks Rules, 2017.

Notice of Opposition and Counter-Statement: Once the Opponent files the Notice of Opposition, the applicant has two months to file a Counter-Statement that sets out how they defend against the claim. If the applicant does not file a Counter-Statement, the trademark registration application will be considered 'abandoned'.
Opponent's Evidence (Rule 45): Once the Opponent is served with the Counter-Statement, the Opponent has 2 months to file 'Evidence in Support of Opposition,' and it is usually filed with a more detailed affidavit. Alternatively, the Opponent can simply state in writing that they will rely solely upon the facts stated in their initial Notice of Opposition. Failure to file evidence or this letter results in the Trademark Opposition being deemed abandoned.
Applicant's Evidence (Rule 46): Then, it is the Applicant's turn. The Applicant has two months from receiving the Opponent's evidence to file their 'Evidence in Support of Application' document. Similar to the Opponent, the Applicant can file an evidence affidavit or a letter stating that the Applicant is only relying on the Counter-Statement. This is the applicant's primary opportunity to defend their "Trademark Registration Online" application. Failure to act means their trademark registration application is considered abandoned.
Opponent's Reply Evidence (Rule 47): Finally, the Opponent has one month to file 'Evidence in Reply'. This evidence must only be in reply to the Applicant's evidence (Rule 46) and it cannot introduce new arguments. While it is not mandatory, there are risks involved with not filing a reply; a recent Supreme Court decision suggests that evidence you don't rebut may consider evidence was deemed as an admission of the evidence. This is an important step in any Trademark Opposition.
Hearing: Once the evidence stages are complete, the registrar conducts the hearing and makes a final decision based on the arguments and evidence presented by both parties.

Important Update on Timelines: In the past, extensions of time, and consequently time limits, have been fairly common for filing evidence. However, the Delhi High Court (in Sun Pharma Laboratories Ltd. vs. Dabur India Ltd.) has affirmed that the two-month deadlines under Rules 45, and 46 are compulsory and unextendable. The Registrar cannot allow extensions at their own discretion. This ruling makes timely filing absolutely critical for anyone seeking Trademark Registration Online or challenging one via Trademark Opposition.

Types of Evidence

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Evidence in a Trademark Opposition must be relevant and prove your claims. The main objective is to establish distinctiveness (or lack of distinctiveness) and usage. This evidence is submitted through an affidavit under formal declaration.

Common types of evidence include:

Proof of Use: Invoices, shipping labels, packaging, and letterheads showing the mark in commercial use.
Promotional Materials: Advertisements (print, digital, or broadcast), social media campaigns, website screenshots, and brochures.
Financial Records: Figures showing turnover, sales, and advertising expenses related to the mark.
Proof of Reputation: Media articles, awards, and public recognition associated with the mark.
For Opponents: Evidence showing similarity, consumer confusion, or bad faith (mala fide intent) on the part of the applicant.
For Applicants: Evidence proving bona fide (good faith) use, longstanding use, or how the mark for the Trademark Registration Online application is distinct from the Opponent's.

How to Submit Evidence

Knowing how to file is as important as what you file for your trademark registration application

Format: All evidence must be in the form of an affidavit. This legal document must be in the first person, properly divided into numbered paragraphs, and state the deponent's full particulars.
Notarization: The affidavit must be duly sworn before a Notary Public or other authorized official.

Electronic Filing: The affidavit and all supporting documents (exhibits) must be scanned, converted into a single PDF file, and submitted by electronic means through the IP India e-filing portal.

Hard Copies: Unless the Registrar otherwise directs, physical hard copies are not normally required.

The parties must adhere to the digital-first approach in their application for Trademark Registration Online. This stage is part of the process of Trademark Registration Online so that all documents are on record.

Importance of Proof of Use

The outcome of your Trademark Opposition or trademark registration defense is determined by the quality of your evidence and not just the quantity.

The evidence must explicitly show how the public has linked that mark with your particular goods or services as their source. Your evidence must show that the mark has become a unique identifier in the minds of consumers. This is the essence of proving distinctiveness and is necessary for a favorable Trademark Registration Online outcome.

In the end, evidence is your only voice before the Registrar. A lack of proper evidence, or filing a few days late will result in dismissal or abandonment of the Trademark Opposition or trademark registration application, resulting in the unnecessary expenditure of money and time.