Understanding Formality Check Fail in Trademark status and Actions to take

With the filing of a trademark application with the Ministry, the process of registration of a trademark does not end. Before it is registered, a trademark application goes through several distinct phases. There are several processes in which a concern is posed by the registrar that needs to be resolved before the trademark status is changed.

If the reply is not filed within the time given, then the request is refused. Therefore, at regular intervals, the applicant needs to verify the status of the submission.

What is Formality Check Fail in Trademark?

The 'Formality Check Fail' status of the trademark, which is a very initial stage in the review of the application, indicates that the basic details and documentation supplied by the applicant have a certain default.

Reasons for the failed application

1. Incorrect class

Trademark classes are classified into 45 classes, Class 1 to 35 goods and Class 36 to 45 services, and we are required to list our goods and services according to this classification when applying for the most relevant trademark registration. At the time of filing an application, the exact class must be chosen if the class is not right, the application will not progress further and the department will mark it as "Formality Check Fail" in the trademark. For example: if an applicant attempts to register a trademark for coffee falling under Class 30 and mistakenly mentions Class 34, then the application will avoid further inspection in such a case and be called 'Formality Check Fail.'

2. Incorrect goods and services

In the application, it is important to include a description of the products or services which the applicant is concerned with. The definition must be based on the goods used and referred to by the applicant in the Nice Classification (NCL) given by the World Intellectual Property Organization (WIPO). In such a case, if the chosen class and its definition do not correspond to the applicant's application, the application is labeled with the Formality Check Fail status in the trademark.

3. Improper documents

As required, all the details in the application must be properly filled in. For instance, if the brand name is in a language other than English or Hindi, translation and transliteration must be provided. The name, address, and other information of the applicant must be in compliance with the power of attorney; the date of the user must be correctly indicated, the description of the photograph, etc.

4. The brand name and logo vary from one another

If the logo and the brand name was given vary from each other and the words listed in the logo do not match the brand name, the classification is marked by the registry as 'Formality check fails'. Both the logo and the brand must also correlate with each other.

5. Improper documents

If all the necessary documents are submitted, the procedure for Trademark Registration may be further extended. This means putting up an application without substantial documentation such as attorney's control, MSME certificate, etc.

The right category in which the application form is to be submitted must be chosen when filing the application form. The categories are broken down into four parts, and they are:

• Enterprise Limited

• Startup

• Personal/Sole Proprietor

• Other

Power of Attorney notarized on a stamp paper of Rs. 100 (One Hundred) under the Individual/Sole Proprietor group must be filed in a pdf form. Similarly, separate documents must be submitted in compliance with the categories referred to above by the applicant during the duration of filing the application.

Hence, if proper documentation is not submitted, then the application shall come under the status "formalities check fail".

It can happen that the documents uploaded are corrupt or that the examiner is unable to open and access them.

6. Improper information

As required by the application Form TM-A, the entire applicant's data must be filled in. The name, address, state, and other particulars of the applicant must be in compliance with the power of attorney; registration number of the agents, category of the trademark, class, description of the products, etc. Also, if the logo or wordmark or any category of the mark is in a language other than English or Hindi, the translation and transliteration of the mark must be given adequately, otherwise, it will be marked as 'Formalities Check Fail’.

7. The logo should be unique

A logo needs to be different and distinctive and should not be a mark of a series. Series Mark means many Trademarks which, in terms of their material characteristics, match each other and vary only in respect of matters of a non-distinctive character which do not significantly affect the identity of the Trade Mark. Therefore, the department will label the application as' Formality Check Fail' if the logo is not special.

Actions to Take

The Department shall issue a notice of failure to comply with the formality audit of the trademark, along with the reasons why the application could not be reviewed. The applicant is required to file a reply within 30 days of the date the notice is given. In the absence of action within a stated period, the appeal shall be considered as ABANDONED for want of prosecution pursuant to Section 132 of the Trade Marks Act, 1999.

A notice for formality check failure will be given by the ministry along with explanations for the same. Within 30 days of the date of receipt of the notice, the applicant must file a reply. The Ministry shall, upon not obtaining a response within the specified time, mark the application as ABANDONED.

From the 'MISCELLANEOUS REPLY' tab, you can file a formality check response by selecting 'REPLY TO FORMALITY CHECK (MIS-F)' and providing the application number. If 'TM-M' is explicitly stated in the case, then one needs to file the type.

Conclusion

This stage can be reduced by filling in an online trademark application with the correct data. Therefore, the trademark must be submitted by experts in order to process it smoothly. But occasionally, for particular reasons, this stage can come to pass. The response to the failure to verify formalities is simple to send by clarifying the issues posed by the department

By filling in the correct details in the online trademark application, one may avoid this point. Therefore, the trademark must be submitted by experts in order to process it smoothly. Often, however, one can come across this stage for technical reasons. It is easy to file a response to the failure to check formalities by clarifying the issues posed by the ministry

BY-

Saumya Krishnani