Significance of Claiming a “User Date” in Trademark Registration Application

In India, Trademark Registration depends on the prior to use and first to claim. It means that an individual who applies for the brand name in the primary place will be given priority for registration of Trademark.

Additionally, when two applications of Trademark are compared and applied, the individual who can claim a prior date of use may have a robust basis than the other. Hence, the significance of the user date in the Trademark Registration application is inescapable.

What is the User Date in Trademark Registration Application?

It is the date on which the Trademark is being used in commercial transactions with or without Trademark Registration. As mentioned above, the former use has more significance than the application made or registered mark. Hence, to claim priority over the name of a brand, the applicant should provide the date of the user and prove it.

In the Indian Trade Marks Act, 1999^[1], an online Trademark Registration Application can be made on any two levels. An Online Trademark Registration application can be made on any two different levels:

• Claiming User Date.
• As planned to be used.

If the date of the user is claimed, the applicant will deliver evidence of usage on the proposed date. If the applicant didn’t give any evidence for the suggested date, he or she should claim the user’s date for which the proof is available.

What Proofs can Support the Prior Use Claim?

When the Trademark Registration application claims a particular date from which the applicable Trademark is being used, the suitable documentation as proof of use will escort the Trademark application.

Documents including the brand date and name, which have public distribution or prove the commercial use of the brand name, maybe adopted as proof for this objective.

Following are the vital documents to be filed with the Trademark application to claim the user date:

1. Bills and Invoices: Invoices issued to a customer should be shown. Further, bills received for any disbursement such as the hiring of new services, purchase of raw materials in connection with a trade, bills for production of banners & brochures, etc., can be submitted. Invoices and bills proof the commercial use of the brand name. If the proposed bill or invoice is provided, the applicant must deliver at least two invoices for each year from the claimed user date.
2. Online Presence: Many businesses in India have their presence on social media or the web. Any certificate or any registration received for the domain can be presented there. Since many businesses only work through social media channels, a sudden promotion or short of the post can also be counted to aid the claim.
3. User-Affidavit: The affidavit of the user should be attached to the Trademark Registration application in India. The applicant mentioned in the affidavit as an allocation that the details claimed regarding the date announced and the brand name use is true. The affidavit shall be authenticated after the appropriate application of Stamp Duty Charges.
4. Registration Certificates: A certificate of registration issued by the government or any authority may assist a Trademark Registration application as it confirms the business or commercial transactions of the applicant.
5. Publication to Public: Any advertisements circulating on a public stage in newspapers or in any other way are also valid proof to establish this claim. But, the publication should have a published date and Trademark or brand name. If the applicant is not able to submit any of the documents as mentioned above along with the Trademark Registration application, the application should be made as proposed, which means that the application date as the priority date will be considered.

Benefits of Claiming User Date in the Trademark Registration Application

Following are some benefits of claiming user date:

1. Discreteness to Mark: An illustrative mark cannot be registered; however, the exclusion is when an illustrative Trademark assumes secondary importance in the proposed market; a mark assumes an identity and uniqueness in the marketplace. Hence, long-lasting usage makes the mark unique and adds support to the Trademark application.
2. Dealing with Proceedings and Objections: The prior use is a productive basis for claiming over protection. At the time of an opposition/objection to a third party, the previous user will have the upper hand over the other. If the user date is not introduced in the Trademark application, the application cannot claim at the time of proceedings.
3. Delivers an Exclusive Right: The Trademarks Act forbid a registered proprietor from interfering with the user’s right to a previous user. It’s made clear by the decision that prior user registration may have priority, and at the same time, it avoids any unauthorised person from Trademark Infringement on a mark that is similar to the previous company or person.
4. Passing Off and Earlier Usage: Passing off is measured as a right that safeguards unregistered marks against registered marks. The Trademarks Act describes that the earlier user takes action against other users for closure, consisting of a registered user using a similar Trademark. But, the earlier user has to prove the date of the user of the proposed brand name.

Conclusion

To stop infringement and safeguard your brand name, it is necessary to state a valid user date in the Trademark Registration application. A pre-use claim adds some value to the goodwill establish over the years and makes applicants more robust on the Trademark. Hence, an affidavit for such use with relevant documents should escort a valid claim application.

Such a claim may amend the tables in the case of Trademark. The date of applications needs a claim for the date of an application, as the failure will not permit the applicant to receive the benefit. During years of value, use, and goodwill created can be passed on to an organisation that has never used the brand name or started using in current times, possibly even an opponent.

Hence, instead of waiving the rights and valued established over the years. The date of the user will be claimed as per the submission of the proof of user and the affidavit that has been established. It must also be sure that the date of user proof includes the publication date of the issue and brand name.

Read our article:What are the Advantages to Register International Trademark?