In India, a trademark opposition is a legal process that enables any person to oppose the registration of a trademark following its publication in the Trademarks Journal. Such a procedure is a very important step of protection within the whole Trademark Registration process as it makes sure the rights of the existing brand owners are protected and the public is not deceived by confusingly similar marks.

The strength of your Trademark Registration is vital for brand protection. However, before a mark gets its final approval, it enters a public notice period. This is where a Trademark Opposition is available within the provisions of the Trade Marks Act, 1999. It allows for a structured mechanism to address disputes before a potentially conflicting mark becomes a registered mark. This is an important feature of the Trademark Registration Online process.

Process of Trademark Opposition

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The Trademark Opposition proceeding is a part of the Trademark Registry which has the characteristics of a quasi-judicial process. It takes place in a manner prescribed by a set of rules, and strict timelines, so that both the opponent and the applicant have the opportunity to properly argue their case. A valid opposition can stop a successful Trademark Registration application. The Trademark Opposition process is thoroughly designed from filing the notice of opposition to the final hearing.

Filing Opposition (TM-O)

Once the examiner accepts a trademark, it gets published in the official Trademarks Journal. This marks the beginning of the opposition period.

Who can file? Under the law, the right to file an opposition is open to ‘any person’. This means not only individuals, but also entities such as companies and trusts whether or not they have a competing Trademark Registration.
Timeline: A notice of Trademark Opposition can be filed within a period of four months from the trademark's publication date in the journal. This period is strictly supervised.
Grounds for Opposition: Opposition can be based on several reasons, including similarity to a registered trademark, being non-distinctive, being descriptive of the relevant goods/services, or if the application was made in bad faith.
Procedure: An opposition can be filed on Form TM-O, along with the prescribed fee. This notice must include the specific grounds which the trademark opposition is based on.

Counter-Statement by Applicant

Once the Registrar serves a notice of opposition to the trademark applicant, the applicant must defend their claim to the trademark registration.

Timeline: The applicant is given a strict period of two months, which is not extendable, to file a counter statement from the receipt of the notice.
Consequences: If the counter-statement is not filed in the above timeframe this will result in the Trademark Registration application being treated as 'abandoned'.
Content: The counter-statement is a formal reply that addresses each of the opponents claims, thus presenting a defense to your Trademark Registration application.

Evidence Submission

After the counter-statement is filed, the Trademark Opposition proceeding moves to the stage of evidence. Both sides present evidence, usually in the form of an affidavit, to support their claims.

Opponent's Evidence (Rule 45): When opponents receive the counter-statement, they have two months to provide evidence to support their argument against it. They still have the option to just rely solely on the facts stated in their initial notice.
Applicant's Evidence (Rule 46): The applicant has two months, after receiving the opponent's evidence, to submit evidence in support of their application and draft counter statements. This step is really important in the Trademark Registration Online process.
Opponent's Reply Evidence (Rule 47): Finally, the opponent has one month to submit any rebuttal evidence, and that evidence must directly respond to the evidence submitted by the applicant.

Hearing and Final Order

After the evidence stage is complete, the Registrar will schedule a hearing. Both parties are notified and given the opportunity to present their arguments orally. The Registrar then issues a final order after hearing the arguments on both sides and reviewing all of the evidence.

The order will either in favor of the applicant, allowing Trademark Registration or in favor of the opponent by not allowing the registration. Any party with a grievance against the Registrar's decision may appeal to the High Court within a period of 3 months from the date of the decision. This is an important update following the 2021 abolition of the Intellectual Property Appellate Board (IPAB). It can be complicated to address the Trademark Registration Online system and potential Trademark Opposition.