Understanding the Importance of Trademark User Affidavit in India

Editorial Team
Updated
April 26, 2023

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.

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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.

FAQ

Q1: What is the difference between a trademark application with a claimed user date and one without?

An application with a claimed user date means that the applicant has already been using the trademark before filing the application. In this case, the applicant needs to submit a Trademark User Affidavit as evidence of prior use. An application without a claimed user date indicates that the applicant has not yet started using the trademark but has plans to do so. In this situation, the applicant can file the application based on their intent to use the trademark, without submitting a Trademark User Affidavit.

Q2: Can I submit a Trademark User Affidavit after filing my trademark application?

Yes, you can submit a Trademark User Affidavit after filing your trademark application. However, it is generally recommended to submit the affidavit along with the application, especially if you are claiming prior use of the trademark. Submitting the affidavit at a later stage may require additional paperwork and could delay the examination process.

Q3: What if I don't have sufficient evidence to support the claims in my Trademark User Affidavit?

It is crucial to provide adequate evidence to support the claims made in your Trademark User Affidavit. Insufficient evidence may lead to the rejection of your affidavit or, in some cases, refusal of your trademark application. If you don’t have enough evidence, consider working with a trademark attorney to help you gather the necessary documentation or assess the best course of action for your application.

Q4: How does a Trademark User Affidavit impact the trademark opposition process?

A Trademark User Affidavit can be beneficial during the trademark opposition process, as it serves as evidence of your prior use of the trademark. It can help establish your rights to the trademark and strengthen your position against any oppositions claiming prior use or similarity to an existing trademark.

Q5: Is it mandatory to submit a Trademark User Affidavit for trademark registration in India?

Submitting a Trademark User Affidavit is not mandatory for trademark registration in India. However, if you claim prior use of the trademark in your application, it is advisable to submit a Trademark User Affidavit along with supporting evidence to strengthen your claim.

Q6: Can a foreign applicant submit a Trademark User Affidavit in India?

Yes, a foreign applicant can submit a Trademark User Affidavit in India. The affidavit should indicate the use of the trademark in India and provide supporting evidence of such use, including sales figures, promotional efforts, and any advertisements related to the trademark within the Indian market.

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