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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.
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.
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.
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.
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.
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.
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 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.
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:
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.
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.
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