If you come across someone infringing upon your reputation or trademarks, you should file a trademark intervention application as an interlocutory petition. It is important to note that the interventions should be filed before publication.
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Registering a trademark in India involves several important stages, including filing the application, examination by the trademark office, responding to any objections raised by the examiner, potential show cause hearing, acceptance, and publication in the trademark journal. Once the trademark is published in the trademark journal, the formal opposition period begins, during which third parties can object to the registration within four months of said publication.
However, suppose you believe that a recently filed trademark application infringes on your trademark even before the formal opposition period begins; in that case, you have the option to file a trademark Intervention/Interlocutory Petition between the date of filing and its journal publication. This proactive step alerts the trademark office of improper registration and also places before it relevant information and evidence that the examiner may consider while deciding on a trademark application.
The Trademark IIntervention/Interlocutory Petition is used to place before the registrar of the trademark the relevant details and evidence in support of prior usage by you or the proof of exclusive intellectual property rights in the applied trademark.
Although the Trade Marks Act of 1999 does not provide directly for a “Trademark Intervention Petition/Interlocutory Petition,” the Registrar of Trademark could exercise discretionary power as provided in Section 128 of Trademark Act 1999. If the petitioner file an interlocutory Petition raising objections against the applied mark, the registrar may decide the same by giving an opportunity of being heard to the parties. Thus it is a common practice to file intervention applications during pendency of the unpublished trademark. The possible legal backing to file the intervention petition may be derived from the fiduciary duty of the trademark registrar to prevent the registration of trademarks that are deceptively similar to any other trademark or that could potentially infringe upon someone else’s existing rights.
The terms “trademark intervention application”, “trademark intervention petition”, and “trademark interlocutory petition” can be used synonymously. However, the most appropriate out of these is “Trademark Intervention Application” as the process itself involves intervening the processing of a Trademark Application due to potential infringement concerns, by presenting accurate facts and evidence to the Registrar of Trademarks.Timing.
Filing a Trademark Intervention Application is quite flexible in timing. You can file it whenever you find a trademark application intervening with your existing Trademark rights, albeit before the application reaches the formal Trademark opposition stage and gets published in the Trademark Journal. This flexibility makes it an ideal option to challenge potential infringement concerns and prevent the adverse effect on your brand’s reputation even if it is unregistered.
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Online Application Stage Formality Check Fail Vienna Classification Examination Stage Show Cause Hearing Accepted for PublicationNote: Do Not File an Intervention after the Trademark Application in question has been Advertised in the Journal.
The filing process involves several steps. You must start by accessing the application number of the Trademark Application against which you’re filing the intervention. Also, gather a few documents to support your claims, like your trademark registration number, and the priority date of trademark use. Once you’ve collected these prerequisites, the next step is application filing.
Before filing the final application, you must ensure that it has been drafted accurately. Although there is no prescribed format for it, you can analyse your case details and draft it comprehensively with all requisite information to support your claims. This includes details about your trademark, the date of its prior use, evidence of prior use, and so on. At Setindiabiz, we help you draft appropriate Intervention Applications and get them ready for filing. With our legal expertise, we ensure complete protection of your trademark rights. Once drafted, you can submit it to the Registrar of Trademarks for further processing.
As such, there is no ideal use case for filing an intervention application. The determining factor here depends on specific case details. Let’s see a few examples of Use Cases where filing trademark intervention would be appropriate!
You can file Intervention against Trademark Applications that seek to protect identical or similar marks. You can produce evidence of your prior use of the mark and rescue your exclusive rights over it.
Also, if a similar mark seeks protection in the same class of goods and services as yours, you have the right to challenge it through an intervention application. This may help prevent both market competition and confusion among customers.
Even if your trademark is unregistered and you are its prior user, you reserve the exclusive rights over it. So, if you find a trademark application infringing such rights, make sure to file an intervention against it. Simply, provide the accurate date and evidence of prior use.
Well-known trademarks receive protection regardless of their registration status. So, if your mark is well-known, you can safeguard its reputation by filing an intervention against any similar Trademark Application.
If you believe the new trademark could cause significant damage to your business’s reputation as soon as it arrives in the market, it’s important to intervene early.
Similarly, if the conflicting trademark application is being processed too quickly, your best shot in stopping its official publication is through an intervention application.
It is the only possible method through which a rightful owner of the mark could inform the examiner about his claim in the applied mark, so that the examiner could appropriately decide about the acceptance of the mark for publication at the examination stage.
It saves time and cost of the petitioner as well as the applicant as the matter could be resolved prior to entering in a rigorous process of opposition.
| Features | Trademark Intervention | Trademark Opposition |
|---|---|---|
| Legal Basis | No specific provision exists under the Trademark Law for trademark intervention applications. Instead, it is filed under Section 128 of the Trademark Act 1999 requesting the exercise of discretionary power by the Registrar, where the Registrar has the discretion to accept or act upon such applications. | The trademark opposition process follows specific laws prescribed under the Trademark Act. The registrar of trademarks considers the opposition grounds and evidence before making a final decision. |
| Timing | It can be filed after a trademark application is submitted but before it is advertised in the trademark journal. | The opposition to a trademark application can be opposed only within four months from the date of its advertisement. |
| Purpose | To draw the attention of the registrar against an application seeking improper registration | The opposition is a formal challenge to the registration of a specific trademark. |
| The Format | Prescribed Form is Form TM -M, and the statement of the case must be filed along with the evidence supporting the grounds of objection raised by the Petitioner. | The opposition should support the claim and grounds which is to be substantiated by filing evidence by the opponent at appropriate stage and is filed in prescribed Form TM - O. |
| Fee | The prescribed form must be filed with a prescribed fee , which amounts to Rs. 2700 in 2024. | The prescribed form must be filed with a prescribed fee , which amounts to Rs. 2700 in 2024. |
| Process | The registrar to its sole discretion, may seek a response from the applicant and then decide on the application. | Comparatively, a very formal process involving hearings and evidence submission. The registrar then passes its decision on the Trademark Opposition matters. |
