How to File Evidence for Trademark Application

During the examination procedure, there could be some traps and pitfalls. Your Trademark application can be objected by the Trademark Examiner or opposed by a third party who came across your application in the Trade Marks Journal. This article explains how to file evidence for your trademark application should you face any issues while registering your trademark.

If the applicant receives any such notice, it is in his right to provide the Examiner with evidence in support of the original application.

The procedure for providing evidence is written in The Trade Marks Act. The applicant should file evidence application by way of an affidavit.

It has to be done within two months or within such further period not exceeding one month in the aggregate thereafter, as the Registrar may on request allow, 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 counter statement and or on the evidence already left by him in connection with the application in question.

In case the applicant relies on any evidence already left by him in connection with the application, he shall deliver to the opponent copies thereof.

But applicant is not the only one who can provide further evidence.

The Trade Marks Act allows the provision of evidence in reply by the opponent (1) and evidence in support of opposition (2).

1. Within one month from the receipt by the opponent of the copies of the applicant's affidavit or within such further period not exceeding one month in the aggregate thereafter as the Registrar may on request in Form TM-56 allow, the opponent may leave with the Registrar evidence by affidavit in reply and shall deliver to the applicant copies thereof. This evidence shall be confined to matters strictly in reply.
    
2. Within two months from services on him of a copy of the counter statement or within such further period not exceeding one month in the aggregate thereafter as the Registrar may on request allow, the opponent shall either leave with the Registrar, such evidence by way of affidavit as he may desire to adduce in support of his opposition or shall intimate to the Registrar and to the applicant in writing that he does not desire to adduce evidence in support of his opposition but intends to rely on the facts stated in the notice of opposition. He shall deliver to the applicant copies of any evidence that he leaves with the Registrar under this sub-rule and intimate the Registrar in writing of such delivery.

If an opponent takes no action within the time mentioned therein, he shall be deemed to have abandoned his opposition.

Everyone should keep in mind that there are specific rules for filing an affidavit, such as the following:

• Affidavit shall be drawn up in the first person, and shall be divided into paragraphs consecutively numbered; and each paragraph shall, as far as practicable, be confined to one subject.
• Every affidavit shall state the description and the true place of abode of the person making the same and shall bear the name and address of the person filing it and shall state on whose behalf it is filed.
• The person before whom an affidavit is taken must be authorized to receive evidence, he also shall state the date on which and the place where the same is taken and shall affix his seal, if any, or the seal of the court to which he is attached thereto and sign his name and description at the end thereof.
• Every affidavit filed before the Registrar in connection with any of the proceedings under the Trade Marks Act or the rules shall be duly stamped under the law for the time being in force.