EVIDENCE IN SUPPORT OF APPLICATION: RULE 46 OF THE TRADE MARK RULE, 2017

When a trademark application is under registration and an opposition is filed, the applicant has the opportunity to respond to the opponent’s claims by filing a counterstatement. After the counterstatement is submitted, the opponent provides evidence in support of the opposition. Once this evidence is received, the applicant must submit additional evidence to strengthen their case.

As per Rule 46 of the Trade Mark Rule, 2017, the applicant is required to file this evidence within the prescribed timeframe after receiving the opponent’s evidence.

This article provides an overview of Evidence in Support of Application under Rule 46, including timelines, contents, required documents, and key procedural considerations.

RULE 46 OF THE TRADE MARK RULE, 2017

Under this rule, after receiving evidence in support of the opposition, the applicant must either file evidence in support of the application or submit a letter stating that they do not wish to present any evidence and will rely on the contents of the counterstatement. This is provided under Rule 46. Rule 46 states:

“Evidence in support of the application.— (1) Within two months on the receipt by the applicant of the copies of affidavits in support of opposition or of the intimation that the opponent does not desire to adduce any evidence in support of his opposition, the applicant shall leave with the Registrar such evidence by way of affidavit as he desires to adduce in support of his application and shall deliver to the opponent copies thereof or shall intimate to the Registrar and the opponent that he does not desire to adduce any evidence but intends to rely on the facts stated in the counterstatement and or on the evidence already left by him in connection with the application in question. 

In case the applicant adduces any evidence or relies on any evidence already left by him in connection with the application, he shall deliver to the opponent copies of the same, including exhibits, if any, and shall intimate the Registrar in writing of such delivery.

If an applicant takes no action under sub-rule (1) within the time mentioned therein, he shall be deemed to have abandoned his application.”

PRESCRIBED TIME PERIOD

• Two months from receipt of evidence in support of opposition or notice of non-filing.
• Missing the deadline leads to abandonment of the application.

TMWala can assist in tracking deadlines, preparing affidavits, and ensuring timely submission to avoid abandonment.

CONTENTS OF EVIDENCE IN SUPPORT OF APPLICATION

Evidence submitted should:

• Respond to all objections or contentions raised by the opponent in the Evidence in Support of Opposition.
• Include documents and records that prove the distinctiveness, prior use, or rights of the applicant in the trademark.
• Documents need to be attached as annexures to a verified affidavit.

DOCUMENTS TO BE SUBMITTED WITH EVIDENCE

The applicant should adduce common documents, including:

• Applicants’ Company/firm details – such as MSME registration, GST certificate, etc.
• Applicants’ Trademark-related documents – such as registration certificates, applications, renewal certificates, etc.
• Supporting materials – such as invoices, advertisements, sales data, promotional materials, or correspondence showing use and reputation of the mark.

THINGS TO KEEP IN MIND

• Ensure para-wise verification of the affidavit. Make sure it has a date, place of verification, and signature of the opponent or person authorised to sign it.
• Address every objection raised by the opponent.
• Keep content clear, concise, and relevant.
• Attach organized and legible exhibits.
• Submit as much relevant evidence as possible to strengthen the case.

TMWala can help in organizing evidence, drafting affidavits, and ensuring proper formatting and submission.

CONCLUSION

The Evidence in Support of Application is a critical stage in opposition proceedings. It allows the applicant to substantiate their claims and counter the opponent’s arguments with proof. Properly prepared evidence, supported by relevant documents and a structured affidavit, can greatly enhance the applicant’s position before the Registrar.

Strict adherence to procedural requirements and timelines under Rule 46 is essential, as failure to submit evidence may lead to abandonment. TMWala provides professional guidance in drafting affidavits, compiling evidence, and managing timelines to ensure a strong legal presentation of your application.

FAQs

1. What is Evidence in Support of Application?
   It is the applicant’s affidavit with supporting documents submitted after receiving the opponent’s evidence or notice of non-filing.
2. What is the time limit?
   2 months from receipt of the opponent’s evidence or notice.
3. What documents are needed?
   Company/firm records, trademark certificates, invoices, advertisements, sales data, etc.
4. What if the evidence is not filed on time?
   The trademark application is deemed abandoned.
5. How can TMWala help?
   TMWala assists in drafting affidavits, organizing documents, and ensuring timely submission to strengthen your application.