Understanding the Importance of Trademark User Affidavit in India

A User Affidavit, or a Statement of Use is basically a legal document which confirms the prior use of a Trademark in commerce. Submitting the Affidavit is mandatory by an applicant filing for Trademark Registration if he claims to be the prior user of the proposed trademark in relation to the goods / services mentioned in the application. The affidavit must be signed and notarised by a public notary.

The Significance of Trademark User Affidavit in India

A Trademark User Affidavit is a legal declaration made by a Trademark owner stating that he has been using the proposed trademark prior to filing the application for its registration. The affidavit helps establish the applicant’s rights to the concerned trademark based on their earlier use of it for quite a significant amount of time.

Why is a Trademark User Affidavit Necessary for Trademark Registration ?

In India, trademark rights are acquired based on the evidence of the usage of the concerned trademark. In this context, a Trademark User Affidavit serves as evidence of prior use and assists in establishing the applicant’s rights over it in case of potential disputes. Moreover, it can also help expedite the trademark registration process.

Legal Framework Governing Trademark User Affidavit in India

The primary legislation governing trademarks in India is the Trade Marks Act, 1999, and the Trade Marks Rules, 2017. Rule 25(10) of the Trade Marks Rules, 2017, specifically mentions the requirement of filing a Trademark User Affidavit testifying to the use of the trademark along with supporting evidence if the applicant claims prior use.

Key Components of a Comprehensive Trademark User Affidavit

• Applicant’s Details : The name, address, and nationality of the applicant filing the Trademark User Affidavit.
• Trademark Information : A clear representation of the trademark, including any words, logos, or a combination of both.
• Date of First Use : The date when the applicant first started using the trademark in relation to the goods or services for which registration is sought.
• Goods or Services : A detailed description of the goods or services associated with the trademark, along with the class(es) under which they fall, as per the Nice Classification.
• Territorial Use : Information about the geographical areas within India where the trademark has been used.
• Sales and Promotional Activities : A summary of the sales figures, promotional efforts, and any advertisements related to the trademark, along with supporting documents as evidence.
• Declaration : A statement declaring that the information provided in the Trademark User Affidavit is true and accurate, and the applicant is the rightful owner of the trademark.
• Signature and Date : The affidavit should be signed by the applicant or their authorised representative, and the date of signing should be mentioned.
• Supporting Evidence : Attach any relevant documents such as invoices, purchase orders, advertisement materials, or packaging samples to substantiate the claims made in the Trademark User Affidavit.