Notice Of Opposition (NOP)

Description

The process of opposing the registration of any mark that is advertised in the trademark journal by the Registrar is called Trademark Opposition. If someone sees their trademark published in the Trademark Journal may file an opposition. According to Section 21 of the Trademarks Act of 1999, anyone can send the Registrar a notice of opposition. This covers businesses, people, trusts, and partnership firms. Therefore, a third party who feels wronged may object to the registration of a trademark. The trademark registry will hold a hearing to resolve any opposition to the trademark that it receives.

OVERVIEW

The process for trademark registration is lengthy and includes advertisement of the mark in the Trademark Journal. During the trademark advertisement or re-advertisement of an application for registration, any person may initiate trademark opposition proceedings. If a trademark opposition is raised, the opposing party will have the option to be heard and the trademark application will have the option to also be heard and respond to the opposition. In this article, we look at the procedure for trademark opposition in India.

The following are some of the grounds for trademark opposition in India:

The trademark is similar or identical to an earlier or existing registered trademark.
The trademark is devoid of distinctive character.
The trademark is descriptive in nature.
The trademark registration application is made with bad faith.
The trademark is customary in the currently language and or in the established practices of a business.
The trademark is likely to deceive the public or cause confusion.
The trademark is contrary to the law or prevented by law.
The trademark is prohibited under the Emblem and Names Act, 1950.
The trademark contains matters that are likely to hurt religious feelings of any class or section of people.

ADVANTAGES:

Protects Registered Brand: If someone has applied for a trademark that is confusingly similar to your brand name and likely to cause confusion once registered, you may be able to protect your company from potential confusion by filing a trademark opposition.
Protects Public Interest: The public has the option to oppose the registration of any applied trademark if they believe that the brand name is not in the public interest through trademark opposition.
Preserves Goodwill: Trademark opposition aids in the removal of false and dishonest applications that are submitted with the goal of stealing the opponent’s goodwill and reputation.

PROCEDURE

Opposition Notice: Section 21 of the Trademark Act, ‘any person’ can oppose a trademark, irrespective of their commercial or personal interest in the matter. A notice of trademark opposition can be filed by any person within four months of date of advertisement or re-advertisement of the application in the Trademark Journal. Once the trademark opposition notice is filed with the Trademark Registrar, the Registrar shall serve a copy of the trademark opposition notice to the trademark applicant.

Counter Statement: Within two months of receipt of the trademark opposition notice, the trademark applicant must file a counter statement. Counter statement is the reply in defense of the objections raised against the Trademark. If the trademark applicant fails to file the counter statement within the prescribed period, the trademark application shall be deemed to have been “abandoned”. Both the parties can be asked further to file evidence to support their side of the argument.

Hearing: After the evidence filing stage, if the registrar is not satisfied by the arguments of both the parties regarding the registration of the trademark, the registrar shall send notices to both the parties stating the date of hearing, which shall be at least one month after the date of the first notice. The hearing is based on the opposition notice, counter-statement filing, and evidence submitted on the prior stages.

Appeals: The registrar decides whether the opposition was successful based on a review of the evidence submitted and a hearing of both parties, and thus whether the trademark should be registered or not. However, a party who is dissatisfied with the registrar’s decision may appeal it to the Intellectual Property Appellate Board.

FAQs

1.Who can raise a Trademark opposition?

According to Section 21 of the Trademark Act, ‘any person’ can oppose a trademark, irrespective of their commercial or personal interest in the matter, if they have reason to believe that their brand name or the reputation of the company will be damaged by the registration of such mark

2.What is the time limit of filing the opposition?

Within four months of the first date of appearance, any person may file a notice of opposition to a trademark that appears in the trademark journal.

3. Where to file an opposition?

The opposition notice should be filed at the trademark registry where conflicting mark application has been filed

4. What is the Difference between Trademark Objection and Trademark Opposition?

A Trademark Examiner issues trademark objection while a trademark gets opposition from a third party.

5. Is it necessary to submit the Power of attorney while submitting the Trademark opposition?

Generally, a power of attorney is to be submitted at the time of filing the opposition notice. If the POA is not available it can be filed later on too.

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