TIME FRAME FOR TRADE MARK REGISTRATION
RADHA PYARI SRIPADA
(Expert) 05 May 2009
There is a clue from s.23 of the Act that an application for tm has to be compulsorily registered if there is no opposition or when the oppositions are dismissed. to my limited understanding, the Act prescribes about time frame when it comes to compliances on the part of the applicant. say for example, it prescribes about time for renewal, restoration, etc., but silent about the same when it speaks about the grant of mark by the registry. may be it is totally impracticable to prescribe time limit for grant of tms. things may take their own course.
you may cross check other sources as well. also check faqs in the trademarks website.
srp
N.K.Assumi
(Expert) 06 May 2009
In addition to Radha Pyari, let me also add that from the reading of section 18 of the TM & M Act 1958, we don’t find any time frame for registration of TM, except the expression “Proposed to be used” which must be used by equating it to the expression “Bonafide intention to use” in view of the provisions of section 46 (1) (a) of the Act. The words ‘proposed to be used” read in the context of section 45 and 46(1) (a) would suggest that the applicant for registration must have present and definite intention to use the trade mark in relation to goods in respect of which registration is sought. A bona fide intention on the part of an applicant to use, as soon as circumstances permit, a mark temporarily debarred from use, because of prevailing difficulties and uncertainty in trade mark may be sufficient apart from other considerations, to justify an application for registration. If there is no unconditional intention to use the mark the registration may be refused under section 18 of the Act. The words proposed to be used by him means proposed to be used by the proprietor himself or by his agents etc. The fiction introduce by section 48(2) is concerned with use- not with the intention to use. It can not be extended to proposed use. A fiction cannot be extended beyond the real purpose.
N.K.Assumi
(Expert) 06 May 2009
You know on what grounds opposition can be made, after the advertisement in the Trade Marks Journal. For fixation of hearing date it all depends on the Registrar for considering the objections and the evidence filed in support of the contentions and decides the case after giving an opportunity for hearing of the parties. The onus of estblishing a case of registration is on the applicant. An appeal against the Registrar's oreder lies to the High Court having jurisdiction.
N.K.Assumi
(Expert) 06 May 2009
Application for Registration of TM should be completed within 12 months unless abandoned by the applicant as per section 23 of the TM & M Act. In an application for registration of a Certification Trade Mark the central Government has got exclusive jurisdiction. In matters arising out of section 18 they are within the jurisdiction of the Registrar.In opposition proceedings the tribunal ie, Registrar or High Courts, which can decides matters arising only under section 62(3) while questions arising under section 63 (2) can be determined only by the Central Government. The orders of the Central government are given effect by the Registrar and such orders are not appealable.
Where the requirements of section 49 and Rules 82 and 83 are complied with, the registrar will forward the application to the Central Government. The registrar may refuse to forward the application for non compliance of the above requirements but he should inform the applicant in writings of thr reasons of refusal.
