Opposition of Trademark[1]
A trademark opposition is basically filed by third party against registration of trademark. It offers third party the opportunity to object against the registration within the time given by law. After the examiner reviews your trademark and finds that it qualifies for registration, your trademark will be published in the Trademarks Journal. In India an opposition must be filed within 4 months of the advertisement in journal of the trademark. When an opponent files an opposition, trademark status will appear as ‘Opposed’.
Section 21 of the trademark states that any person can file a trademark let them be a company partnership or a person, the person filing the opposition need not have any commercial interest in the matter or a prior registered trademark in the Registry.
-When can one file an opposition? [2]
1-Absolute grounds of Refusal as provided under sec 9(a) in Trademark Act 1999
makes it clear that any mark devoid of any distinctiveness that is to say not capable of distinguishing the goods and services of one person from those of another person can lead to opposition of that Trademark Thus, if any third party finds that the mark is non distinctive or similar to some other Trademark they can file an opposition against it.
2-Relative’s ground of Refusal According to Sec 11(2) of Trademark Act 1999 states that if the applicant’s trademark is being phonetically or visually similar, conceptually confusing and deceptively similar to some other existing trademark opposition can be filed for the same
3- Section 11(3) seeks that a trademark should not be registered whose use in India is liable to be prevented by virtue of the law of passing off protecting an unregistered trademark used in the course of trade or by the virtue of law of copyright, for application of this section it is necessary that the Opponent satisfies the trinity of “passing off” .This section also provides ground for violation of copyright
4-Section 11(10) provides that while considering an application for trademark and opposition filed, the registrar should protect the well-known mark against the identical or similar trademark
Conclusion –
Grounds of the opposition of a trademark might vary sometimes depending on the facts of the case there can be multiple reasons like passing off, geographical location etc as above stated are reasons of when can a party file an opposition.
BY
RASHI OSWAL
B.A. L.L.B 3rd Year
DES NAVALMAL FIRODIA LAW COLLEGE, Pune
[1] https://legislative.gov.in/sites/default/files/A1999-47_0.pdf
[2] https://www.mondaq.com/india/trademark/521200/trademark-opposition-in-india