Last updated: December 2nd, 2019 11:15 PM

Filing Evidence for Trademark Application

During the trademark registration process, a trademark application can be objected by the Trademark Examiner in an examination report or opposed by an opponent by filing TM-5. In any case, the trademark applicant has the chance to counter the objection or opposition by filing evidence in support of the trademark application. In this article, we look at the process for filing evidence to support a trademark application.

Evidence in Trademark Application

Evidence filed in support of a trademark application must be given on affidavits. However, in special cases, The Trademark Registrar may also allow oral evidence in support of a trademark application, at his/her discretion.

Trademark Evidence Affidavit

The trademark evidence affidavit must be duly stamped, be drawn up in first person, be divided into paragraphs that are consecutively numbered and be confined to one subject. Further, the affidavit must also state the address of the person making the affidavit, the name and address of the person filing the affidavit and the name and address of the person on whose behalf its being filed.

All trademark affidavit must be taken before a court or person having by law authority to receive evidence, or before any officer empowered by such court to administer oaths or to take affidavits. In case the affidavit is being executed overseas, then the affidavit must be taken before a diplomatic or consular officer or before a notary public or before a Judge or Magistrate, of the country. The person before whom an affidavit is taken should state the date on which and the place where the affidavit is taken and affix his/her seal and sign his/her name.

Filing Evidence in Support of Trademark Opposition

Any evidence filed in support of a trademark opposition must be filed within two months of receipt of copy of couter-statement. In case additional time is required to reply, the opposing party may request for extension of filing period by not more than a month, by filing form TM-56.

Filing Evidence in Support of Application

The applicant can file evidence, if necessary, in support of a trademark application within two months of receipt of copies of affidavits in support of opposition or intimation that the opponent does not desire to adduce any evidence in support of his opposition. In case additional time is required to reply, the trademark applicant may request for extension of filing period by not more than a month, by filing form TM-56.

Non-Filing of Evidence

In case the opponent or application does not file any evidence, when required, then the application or opposition is deemed to have been abandoned. Once the application or opposition is abandoned, then the registration process progresses as per the applicable facts.