SIGNIFICANCE OF CLAIMING A USER DATE IN TRADEMARK REGISTRATION APPLICATION

Introduction

Trademark registration is done specifically for the purpose of claiming the right over a particular word/mark or a combination of marks and to restrain anyone from using it further. An individual or a company who applies for trademark registration gets priority over that name. Further trademark registration in India is based on who is claiming the trademark first. Even when two trademark registration applications are compared and taken into consideration, the one who can claim the prior date of usage will have a high chance of getting his/her trademark registered earlier than the other.

Trademark Act 1999 provides two modes under which an online trademark application can be made:

1. Claiming of User Date
2. As proposed to be used

Why is Registration of Trademark Important?

There are two types of trademarks in India, i.e., registered trademark and unregistered trademark. A registered trademark has undergone a tedious process to get registered, and so it owns more rights than unregistered trademarks. Some of the common benefits of trademark registration are:

• Customers will be easy to locate the registered trademark or brand name. Customers reach the product easily of the registered trademark because of its unique character.
• A registered trademark can last for many years. However, one needs to renew the trademark registration after every ten years. Nevertheless, the identity which gets associated with the registered trademark remains forever.
• A registered trademark is also associated with the business/firms. A registered trademark can lift up the firms to heights. It can be considered as a value asset which grows over time.

User Date

User Date is defined as the date since the brand name has come into power for commercial purposes. So it can be noticed that user date is very significant both in the context of registered as well as unregistered trademarks. Further prior date of usage plays an important role in the procedure of trademark registration. It can be referred to as more important than a registered trademark. Thus to claim priority and authority over a brand name, an applicant must provide and prove the user date. Further, if the applicant is claiming the User Date he must provide the proof of usage of the said date. In case the applicant fails to provide the User Date, then he must claim the date for which the proof is available.

How does User Date work?

A claimed user date can prove to be a boon in many trademark cases. When two trademark applications are applied and compared, the trademark application that claims a prior date/date of first use of the trademark has a better chance of getting exclusive right to use the mark. Hence it is advised that if one is using the name before going in for registration, one must claim the use of said brand from that date. Moreover, in case the brand is not in use, it has to be applied under the category proposed to be used.

What proofs can uphold prior use claim?

When the trademark application claims a specified date from which the applied trademark is being used, then some documents as proof of use will accompany the application.

Following are the documents that need to be filed along with the application in order to claim the User Date:

1. User Affidavit: A user affidavit is one of the most important documents which needs to be attached along with the trademark registration application in India. The applicant, through the affidavit, shows that the date claimed and the facts disclosed in the application in regard to the trademark are correct. The affidavit should be notarized with the payment of stamp duty.
2. Invoices and Bills: Invoices and bills also serve as great proof for the claim of user date. Invoices of a customer can be presented. Further bills received for an expense, hiring services, publication of banners, etc. can also be presented. The applicant must provide at least two invoices for each year for the claim of user date.
3. Government Registration Certificates: Registration Certificates issued by the government of India or any other authority will also serve as a great support to the application as it validates business or commercial transactions of the applicant.
4. Publication to the public: Any publications, advertisements, or wide declarations made to newspapers or any other modes through which the information has reached the public platform also serves as good proof to establish a claim. Further, the publication must contain the published date and the brand name.

Advantages of claiming user date

1. Dealing with objections: the applicant who claims prior use also claims upper authority over the trade name. Prior use, even in the cases of objection or third-party opposition, will help the applicant to regain his right.
2. Provides an exclusive right to use trademark: The Trademarks Act restricts the Trademark owner from interfering with the rights of the prior user. The prior user gets priority in registration, and he/she can prevent any third person from trademark registration or infringing the mark that is similar to such a previous company or individual.
3. Passing off: Passing off is used to enforce unregistered trademark rights. The right of unregistered cannot be taken away if he/she is using the brand name before that of the registered owner.

Conclusion

Trademark registration has its advantages. The importance of user date is very much in the trademark registration application. To prevent trademark infringement, it is always better to state a valid user date in the trademark registration application. The prior use element adds the value of goodwill and makes applicants right over the trademark stronger. Trademarks, however intangible in form and in nature, but hold the brand value for a long time. In A crucial market like India, where daily hundreds of competitors are growing in the market, it becomes extremely crucial for the brands to get protection. So it is always advisable to get a trademark registered as with its unique nature, customers will also reach out to it easily.

References:

https://www.legalwiz.in/blog/significance-of-claiming-a-user-date-in-trademark-registration-application

BY- MUNIS NASIR