What is trademark hearing?
Trademark hearing is just like an ordinary suit hearing but it is with the trademark officer. An applicant himself or through the agent or attorney can appear in the hearing. It is to clarify the issues raised by the examiner in the application.
Trademark hearing is nothing more than presentation in person or by means of a trademark agent or solicitor before the registrar of trademarks for the dismissal of objections presented in the review report published earlier in the days following the application of logo and trademark registration. The chances of registered trademark complaints are very high and trademark hearings occur if, during the registration process, the registrar is not pleased with the reaction lodged against an complaint presented by the examining report.
Documents required for hearing
The person who appears in the trademark hearing must carry the documents required. The set of documents differs from case to case. Basic documents required are as under:
- Power of attorney
An applicant must provide a power of attorney to the trademark attorney.
- Letter of authorization
An authorization letter is mandatory in favor of a person appearing in the hearing on the applicant’s behalf.
- User affidavit
If an applicant claims the prior user date in the trademark application, then the applicant must provide the details of usage of the trademark in an affidavit.
- Proof for prior use
An applicant must collect the proofs when he/she claims the prior user date. There must be sufficient proofs from the date of the claim to the current period which proves that the applicant is in continuous use of a trademark.
Any other documents as required to strengthen the case and such other documents as demanded by the officer if any.
When, Why & How?
The trademark examiner examines every trademark application with various parameters. If the examiner finds any issue with the application then he/she raises an objection. There are two ways to respond to the examination report. One is to file trademark objection reply by answering all the queries raised in the report. Another way is to directly request for scheduling a hearing with the trademark officer.
Another stage of hearing arises when the applicant chooses to file a reply to the objection then he needs to file it within 30 days. If the reply is satisfactory then the examiner will process the application to the next stage. But if the reply is not satisfactory to the examiner or he requires additional information, then he may schedule a hearing.
After publishing the trademark in a journal, the applicant may receive opposition from a third party. After filing the necessary response and evidence against the opposition, the examiner gives an opportunity of being heard to both the parties. Hence, the hearing is scheduled at the stage of opposition also.
Place of hearing
The trademark hearings are scheduled at the office of Registrars of Trademarks. There are five jurisdictional offices in all over India. All the states and union territories are divided into five jurisdictions as under.
MUMBAI: The State of Maharashtra, Madhya Pradesh, Chhattisgarh and Goa
AHMEDABAD: The State of Gujarat and Rajasthan and Union Territories of Daman, Diu, Dadra and Nagar Haveli
KOLKATA: The State of Arunachal Pradesh, Assam, Bihar, Orissa, West Bengal, Manipur, Mizoram, Meghalaya, Sikkim, Tripura, Jharkhand and Union Territories of Nagaland, Andaman & Nicobar Islands.
NEW DELHI: The state of Jammu & Kashmir, Punjab, Haryana, Uttar Pradesh, Himachal Pradesh, Uttarakhand, Delhi and Union Territories of Chandigarh
CHENNAI: The state of Andhra Pradesh, Telangana, Kerala, Tamilnadu, Karnataka and Union Territories of Pondicherry and Lakshadweep Island
Procedure of Trademark Hearing
The trademark ministry sends the notice of hearing well in advance to the applicant. The applicant or the attorney must present in the hearing on the allotted date and time at the respective jurisdictional office. An applicant or attorney must present the case, facts and relevant submissions and evidence before the officer.
After hearing the case the trademark officer may pass the necessary order either acceptance or rejection of trademark. If the officer deems fit he may schedule another date to know more facts of the case and he may adjourn the hearing.
The order passed by the officer will be uploaded on the trademark website. If the hearing is adjourned then the next date of hearing will be updated in a few days.
Adjournment of hearing
As mentioned above the trademark officer may adjourn the trademark hearing. Or an applicant may also request to adjourn the hearing. The applicant has to file TM-M for adjournment with a fee of Rs. 900/-. The request for adjournment shall be filed in advance otherwise the trademark may get abandoned due to non-attending the hearing on the scheduled date.
Basically a trademark hearing is presenting the case before the trademark officer. To present the case with the requisite facts and to support it with the relevant case laws it is necessary that the hearing is attended by an experienced trademark attorney. The officer may abandon the trademark application if the case is not presented properly or due to insufficient proofs.
If the complaints to the satisfaction of the trade mark office are not answered by the reply, the applicant may use the opportunity of hearing before the Trademark Registrar, if he / she is willing to file submissions orally. The hearing is usually held by the assistant trade mark registrar.