Evidence of Use: Key to Successful Trademark Registration

Trademark Registration is Power of Usage Evidence

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Overview

The Trademark Registrar appoints trademark examiners to verify trademark applications. Examiners of trademarks review applications and file objections if they find violations of any Trademark Act or Regulations. Generally, "absolute grounds for refusal" or "relative grounds for refusal" are used to file trademark objections. The trademark applicant may reply to the trademarks objection by providing proof of use if the mark has become distinctive and the applicant a genuine honest user of the mark.

Share of Market:

When a petition for registration of trademarks is made on the grounds that a mark is recognized as a well-known one, market share statistics can be provided as proof of use by major companies. Market share information cannot be utilized to support a trademark registration if the applicant is a small business, in which case it is meaningless.

Promotional Spending:

Advertising expenses incurred for a minimum of three years prior to the application filing date may be included as proof of use. It is advisable to separate and organize supporting documentation of advertising expenses under multiple categories, including trade journals, newspapers, radio, and and television. The Registrar will take into account two key factors: the amount of money spent on advertising and the location of the advertisement (local vs. national). The Trademark Examiners will anticipate a significant advertising expenditure equivalent to the typical sales/advertising ratio for other businesses in the sector, for instance, if the filed trademark application involves consumer goods.

Turnover in Sales:

Sales turnover numbers can be shown as proof that a trademark is being used. Sales turnover is often calculated based on sales of products or services sold under the mark within a five-year period prior to the application date. If the usage period is shorter, the trademark application needs to be supported by a sizable turn over during that time. The likelihood of the mark being accepted increases with turnover. duration of use, advertising, and turnover are taken into account collectively; advertising and/or turnover may make up for a brief usage duration. Turnover statistics might not be the right yardstick for evaluating a company in various sectors of the economy. For Whatsapp, for instance, sales turnover figures would mean nothing. In such circumstances, other metrics such as subscribers, the quantity of investors or account holders, and, if suitable, the quantity and distribution of branches geographically, could be employed to illustrate the scope of the application.

Price lists, brochures, and invoices:

Documents such as price lists, invoices, brochures, catalogs, and advertising can be used to bolster a trademark application and provide evidence of the mark's usage and associated products and services. Every exhibit that is presented needs to be dated earlier than the application date.

Websites & Domain Names:

It is possible to register domain names as trademarks. Additional websites and domain names may also be utilized to verify proof of use. If a domain name or website is provided as proof of usage, it must demonstrate that the appropriate products or services have been made available for purchase under the name of the domain. Therefore, trademark use may occur from the popular use of a domain name on websites that sell goods or services.

Trade Documents:

Submissions of evidence of usage may also take the form of testimonials from third parties or industry experts attesting to the unique qualities of the trademark. These declarations or supporting documentation may come from trade and professional organizations, chambers of commerce, or individual customers.

Surveys of customers:

Surveys from customers may be used as proof of usage. Still, the surveyor needs to be careful to make sure that questions posed, the sample selected, and the survey's timing all comply with trademark laws. For example, inquiries such as "is the sign recognized as the applicant's trademark" must not be leading. Open-ended inquiries like "What, if anything that we do, does this photograph signify to you?" are required.

What does "evidence of use" mean?

It might be feasible to get your logo registration for your trademark application's adverse assessment report overturned if you can show that your mark has been used.

Information about the usage and promotion of your logo registration of trademark is typically considered evidence of use. Typically, it consists of:

A cover letter that should contain the application's details but not any private or sensitive information.

A statement from you detailing the usage of the trademark. This might contain private company data like market share and sales numbers.

Exhibits that demonstrate the use of the trademark / logo registration in the course of commerce and bolster the claims stated in the declaration.

Which problems are you able to solve with use cases?

If you are required to answer to issues within the provisions of Section 41, the 44th section, or both, it will be specified in your examination report.

According to Section 41, your mark isn't distinctive enough: The question of whether a trademark can set your products or services apart from those of other companies is covered in Section 41. The trade mark you have applied to is unlikely to function as a badge of origin or sign of trade source if the trademark examiner finds issues with the mark under section 41.

Your mark (Section 44) is too close to one that already exists: An objection under Section 44 must be made when:

Any trademark with a priority date earlier than your application is identical to your mark.
Both the earlier trademark registration and the goods and services that are listed in your application are comparable or closely linked.
In order to prove that your trademark application should be accepted notwithstanding the existence of an existing trade mark, you can offer proof of use in answer to a 44th section objection.

How to provide use evidence

Fill out a declaration form that you can download, adding further pages if necessary.

Attach a cover letter outlining the following:

The applicant's name.
Brand name registration.
You are responding an objection.

Note: Any private or sensitive company information should not be included in a cover letter since it could be subject to s217A, which allows for public viewing.

Include dated instances as exhibits to back up your statements. Images of your trademark registration on your products or services may be among them.

Use internet resources to submit your declaration.

Unseen Pillar of Successful

Trademark Registration is Power of Usage Evidence

Online process. Save 30% cost

1 Lakh+ Happy Clients

Well Qualified Team

Fast & Quick Process

Free Consultations Lifetime

100% Customer Satisfaction

Apply Now!

Overview

Share of Market:

Promotional Spending:

Turnover in Sales:

Price lists, brochures, and invoices:

Websites & Domain Names:

Trade Documents:

Surveys of customers:

What does "evidence of use" mean?

Which problems are you able to solve with use cases?

How to provide use evidence

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