After filing a trademark application with the USPTO, the applicant starts the long and arduous waiting period during which the mark undergoes an examination from a trademark examining attorney to establish that the trademark is both sufficiently distinct and does not infringe on the existing trademark rights of a prior applicant. Recall from earlier in this Trademark Opposition Guide, we learned that, “Any person who believes that he, she or it would be damaged by the registration of a mark on the principle register may file an opposition addressed to the Trademark Trial and Apppeal Board.” The Opposer must demonstrate with sufficient reason and conviction that he/it does indeed have a legitimate stake in the outcome of the prospective trademark’s registration by illustrating how he will be damaged if the registration proceeds. 3. 15 U.S.C. Free consultation on counter statements for trademark opposition. First, the Opposer files its brief, then the trademark Applicant files its brief, and then the Opposer is presented with the opportunity to file a rebuttal brief. § 1063(a) [Trademark Act § 13(a), TRADEMARK OPPOSITION PROCEEDINGS: PRE-TRIAL CONSIDERATIONS, CEASE AND DESIST LETTER COPYRIGHT INFRINGEMENT, Trademark Opposition Process: A Complete Procedural Guide to the TTAB. § 1052(e)(1). Thus, the TTAB does not have jurisdiction to consider any associated damages that may arise from trademark infringement but rather only establishes the merits and legitimacy of granting or denying a federal trademark registration. Once the Notice of Opposition has been served upon the Defendant, the TTAB will issue an Order setting forth the relevant dates for each successive phase of the proceeding. Remember, trademark law requires a mark to be sufficiently “distinctive” and if a trademark is synonymous with a specific feature of the goods/services sold under the trademark, it is said to be a descriptive trademark and therefore ineligible for registration (unless the mark has achieved secondary meaning). See the Trademark Trial and Appeal Board forms. Less common but still notable grounds for opposing a trademark include claiming that the mark is descriptive, scandalous, disparaging, primarily a surname, is functional, or the applicant is either not presently using the mark in commerce or lacks the intent to use it in commerce. 9 November … Merely not wanting the trademark to register is not a good enough reason – the Opposer must somehow personally be affected by the registration of the mark, which very often takes the form of a Likelihood of Confusion claim. It is first sent to the Registry for review and if all the formalities are met, the Registry will then serve the notice on the other party.A … Trademark examination report shall contain the reason for objection. This default judgment is very serious indeed and is binding against future trademark applications. The application is then open for others to oppose its registration. A trademark is a source identifier – when an individual sees a trademark attached to a good/service, the viewer immediately understands the source of that good/service, or the company, which produced it. Trademark Trial and Appeal Board practice group of Collen, a leading U.S. intellectual property law firm. Initially, the TTAB will send a Notice of Default containing an order allowing the respondent 30 days to show cause why judgment by default should not be … Practitioners should refer to it often, as it provides a solid foundation to ensuring that the case stays on track. The response can also be made by an agent authorized by the trademark applicant. Once a trade mark application has successfully passed the examination of the EU Intellectual Property Office (EUIPO), it is published in the Trade Marks Bulletin. For example, if the Opposer is claiming a likelihood of confusion with one of its existing trademark registrations, consider the following: b. Conclusion:  As a defendant in a trademark opposition proceeding, it is important to have a well-crafted answer, affirmative defenses, and counterclaims, where appropriate. Here, the Opposer will argue that the proposed trademark is excessively similar to his trademark and the registration of the trademark will adversely affect his own stake in the mark. 37 C.F.R. If the applicant fails to answer the notice of opposition, the trademark application will ultimately be abandoned. What is a notice of opposition? So, now that we know who may file the opposition, on what grounds can the trademark opposition be filed? §2.64 (b). Of course, none but the most prophetic among us can guarantee an outcome but there are at least enough markers and guideposts to look to in order to evaluate one’s chances of success or failure. You may file a petition to cancel, after the trademark registers. The party that filed the application that is being opposed is known as the Applicant. Read the Complaint very carefully and make an honest assessment, with the help of a trademark litigation attorney, of the strength of the complaint and the plaintiff’s likelihood of prevailing. The failure to comply with the case management dates could irreversibly jeopardize a party’s rights. By continuing to use this website, you agree to the use of cookies. Here are six steps to consider when preparing and filing an Answer to a Notice of Opposition: Step #1.  Review the Opposer’s complaint. When the applied trademark is published in the Journal of Trademarks, anyone can oppose the published trademark within 3 months from the date of journal publication. Because, going through an entire trademark opposition proceeding can be so tremendously expensive (for both sides), it is very often the case that the two parties will reach a settlement before the proceeding becomes too advanced. The Trademark Trial & Appeal Board will set a trial calendar with the deadlines for each stage of the opposition proceeding. Typically, the applicant will have 40 days to provide an answer to the opposition and the Trademark Trial and Appeal Board (TTAB) will provide a series of deadlines accounting for each stage of the opposition proceeding. If your opposition is only based on … Consider any possible counterclaims. does your trademark contain a logo design or other words that are not descriptive of your goods or services? ii) The opposition must indicate the grounds on which it is based. Abe is committed to his client's success. An Opposer may raise any available statutory ground for opposition that negates the defendant’s right to registration, including likelihood of confusion, mere descriptiveness, or that the Applicant lacked a bona fide intention to use the mark at the time of fling. If your status in the trademark registry shows that it is “objected”, it means that the registrar finds the mark you selected in the application filed is not eligible for being registered. on failure of filing the counter-statement the application for registration deemed to … Trademark Trial and Appeal Board (TTAB). The bar to be a qualified party to file the Trademark opposition is admittedly fairly low: “15 U.S.C. Trial Briefs: Trial briefs allow for each respective side to present a coherent argument and summation of their positions in alternating fashion. The legal costs of opposition. Critically, Trademark Oppositions do not happen in a Federal Court but rather at the level of the Trademark Trial and Appeal Board (TTAB), which is an arm of the United States Patent and Trademark Office (USPTO). The application shall contain: the name of the aggrieved party, does your trademark describe an ingredient, function, or feature of your goods? James Hastings is an attorney with the U.S. Each respective party must include an affirmative defense (if appropriate) in its brief or waive the right to the affirmative defense. The Trademark Trial and Appeal Board (TTAB) is an absolute stickler for dates and procedural accountability; deadlines must be met and rules must be followed. The Trademark objection reply letter provides the opportunity to present the ground as to why the applicant is entitled to get his/her mark registered. The reply either can be accepted by the registrar or can be rejected and if the reply is rejected, the registrar will fix the hearing where the applicant has to be present for his trademark hearing. Thus, anyone with a “real” or bona fide interest in the proceeding of the trademark is eligible to oppose it. In order to demonstrate prior use, the Opposer may illustrate either earlier trademark use or actual prior registration date. The Opposition Division of the EUIPO uses the five languages of the Office (English, French, German, Italian and Spanish). This can include abandonment of use of some of the goods contained in the Opposer’s registration, or all of the goods. Usually, the registrar takes around 3-5 months to respond to the reply filed by the applicant in respect of the examination report. TTAB Issues a Decision: Typically, within six months of the evidence being submitted and the trial’s completion, the TTAB will issue a decision and rule in favor of one of the parties. It is incumbent on the plaintiff in the Notice of Opposition to provide an explanation as to why he has standing (how the registration of the trademark will be adverse to his own interests) along with a more detailed substantive argument which calls into question the defendant’s (that’s you!). The USPTO recognizes that just because an examining attorney determines based on a preliminary review that a trademark is suitable for registration, that doesn’t necessarily mean that relevant third parties with an interest in the trademark should not have the right to oppose the mark’s registration. The counter statement shall typically comprise the following: The complex and nuanced rules of the Federal Rules of Civil Procedure along with the idiosyncrasies of trademark law, as governed by the Lanham Aact (15 U.S.C. Critically, the facts and arguments contained within the brief must have already been presented (in some form) at the trial and may not involve new information. In case if the examination report contains any observations, the same will be communicated to the applicant/trademark agent for submitting a reply to the examination report. Alternatively, the Opposer may mount a likelihood of confusion argument and will be required to demonstrate how under the 13-part test outlined in the In re E.I. Standing generally requires that the Opposer have a real interest in the outcome of the proceeding and that the allegations of damages have a reasonable basis in fact. If you want to oppose the registration of a trade mark then you must file a TM7 ‘Notice of opposition and statement of ground’. It is up to the TTAB to set the relevant dates for each part of the proceeding but typically, from the date of the filing of the Notice of Opposition, the defendant (yes, you are now a defendant in litigation!) While there is no standard format for an Answer, it is generally best to answer each numbered paragraph of the complaint by providing a short statement either admitting or denying the alleged facts. Remember, one of the most common grounds for a Trademark Opposition is the claim that the newly published trademark would create a likelihood of consumer confusion with the Opposer’s existing trademark (under Section 2(d) of the Trademark Act). Opposition proceedings are like mini-trials. The TTAB’s primary purpose is to decide whether or not a given trademark deserves trademark registration in the United States Patent and Trademark Office (USPTO). Trademark Objection - An Overview. is your trademark similar in sight, sound, or meaning to the Opposer’s trademark? What is interesting about the format of the Answer is that while there are no strict structural guidelines to a proper response, there are certainly best practices. It takes about three (3) months from the close of the opposition period (including extensions) until a registration issues if the case is not an Intent to Use case. Within one month of receiving the Affidavit and evidence under Rule 46 or of the letter intimating the waiver of right to file such Affidavit and evidence from the applicant, the opponent again has the option to adduce further evidence in support of the opposition in the form of an affidavit in reply, including exhibits, if any. The briefs contain a discussion of the facts of the case, the relevant statutory and case law, affirmative arguments and a rebuttal of the party’s adversary’s arguments. Trademark is a unique mark, symbol or label that distinguishes your product from those of your competitors helping in its easy identification. Submit an Answer to the complaint which both satisfies the procedural rules of the TTAB, which can be found in the TBMP, and addresses the substantive arguments set forth in the complaint. A trademark may be a word, logo, phrase, sound and serves to distinguish a product from those of the company’s competitors. Using a trade mark attorney, you can be sure that your opposition will be made in time and in the correct manner and avoid unnecessary costs. Trademark opposition guidelines may be found in the Trademark Board Manual of Procedure. Fight Back On Your Own.To do this effectively, you will need to learn how to navigate the Federal Rules of Civil Procedure properly. Fundamentally, the objective of the conference is to facilitate an open discussion about the “nature and basis of the involved claims and defenses, the possibility of settlement of the case or modification of the pleadings, and plans for disclosures and discovery…” TTAB 408.01(a). Remember, Trademark Opposition proceedings along with all of the other proceedings (trademark cancellations etc.) Receipt of a notice. Step #6. If the Opposer successfully demonstrates that he has standing and is in fact a legitimate Opposer, he will need to move on to the more tenuous part of the case, which is proving, the various elements of the charge. Likelihood of confusion. Hire An Attorney.You can hire an attorney to either represent you in the proceeding or consult you on how to represent yourself (an affordable … The applicant is required to file his reply in 30 days from the examination report. For example, the trademark BED AND BREAKFAST REGISTRY has been found to be merely descriptive of lodging reservation services. Substantive Arguments: Making the Trademark Opposition Case. (one way to determine this is to conduct a search of the Opposer’s website and commercial activities); are the Opposer’s goods and services in the same class as those in your trademark application? a. can your trademark be considered to have more than one meaning such that it is not merely descriptive of your applied for goods and services? The purpose of publishing the mark to the Official Gazette, which occurs every two weeks, is to provide a 30 day trademark opposition period where third-parties can review published trademarks and if they have a real and bona fide interest in the matter, can oppose the registration of the trademark. # Counter Statement: Rule 44of The Trademark Rules, 2017, states that after the filing of the notice of opposition, the Applicant for the registration of subject mark, can file a counter statement, in Form TM-O, within 2 months (not extendable) of the receipt of the notice of opposition. Contact Ebizfiling for Trademark Objection and Trademark Objection Reply. 1051) mean that trademark litigation is quite simply, very complicated. Trademark opposition proceedings are contested matters before the U.S. Trademark Board Rules. The complaint, known as a Notice of Opposition, is filed by the Opposer, who may allege several grounds for refusal of a trademark application. Below is a list of the most commonly cited grounds for filing a trademark opposition: Critically, it is incumbent on the trademark Opposer to prove any of the above-mentioned claims by a preponderance of the evidence, which reinforces the idea that it is ultimately incumbent on the Opposer, rather than the USPTO, to stop trademark infringement. A counter statement or reply to the notice of opposition must be filed by the applicant within two months of receipt of the notice of opposition by way of Form TM-O along with the prescribe fee of INR 2700. Trademark Law FundamentalsLearn Trademarks, Trademark Oppositions and Cancellations are very serious matters indeed whose procedural dictates must be followed to the letter. If you cannot do so, then state that you have insufficient facts to either admit or deny the claims. Do Nothing.Let your trademark protection lapse and likely lose any legal protection for your brand. Should the plaintiff’s standing be called into question? There are motions, discovery, and trial and as such, a trademark opposition proceeding should be taken very seriously and with the understanding that they can be time-consuming and costly indeed. Such a registration is raised by the trademarks examiner. An answer to a trademark opposition may include affirmative defenses.Examples of affirmative defenses are Opposer’s unclean hands or fraud in bringing the opposition. Updates on developments related to IPR (Intellectual property). Abe is managing partner of Cohn Legal, PLLC, Head of the firm’s Intellectual Property and Transactional Group, and works in the New York office in Midtown Manhattan. The plaintiff (Opposer) submits all evidence through a 30 day period and the Respondent has 30 days to submit its own evidence. If an opposing party has legal representation from a trademark attorney and an invested interest in the outcome of the opposition, there is little chance that an applicant will be able to fight the opposition on anything but the merits: the owner of the pending mark must defend his or her mark based on the grounds for the opposition and come up with a response … While a Trademark Opposition Proceeding does not occur in Federal Court, it has many of the same procedural aspects of a lawsuit including pleadings, discovery, and trial. This situation is known as Trademark Opposition. The discovery phase, conversely, like any lawsuit, is an extensive and resource-consuming process and consists of requests for production of documents, admissions, written interrogatories, depositions etc. First, cost awards won’t cover all your proceeding costs. If you are on the receiving end of a Trademark Opposition, you should consider strongly how you can attack either of these two preliminary requirements. Principally, the testimony period allows for alternating periods in which each respective side can present the evidence that they have gathered. If you are the Applicant, it is important to understand the basis for the Opposers’ claims. If a person objects to the registration of a trademark that has been applied for, they can start an opposition as long as it properly raises at least one ground of opposition set out in sufficient detail to enable the other party (the applicant) to reply to it. This response is called “Reply to Examination Report”. you have evidence of business plans going back to your time of filing related to efforts to develop or market goods to be offered for sale under the mark; if you did not have a written business plan, that you have other evidence that demonstrated your objective intent to use your trademark in commerce as of the filing date (for example, emails to third-party website developers, manufacturers, or marketing agencies). An answer to a trademark opposition may include affirmative defenses.Examples of affirmative defenses are Opposer’s unclean hands or fraud in bringing the opposition. The notice of opposition may only be filed in one of these languages and the language must also coincide with one of the two languages chosen by the applicant for the European Union trade mark, as indicated upon publication of the application in the EU Trade Marks … The main difference between Trademark Objection and Opposition is that Objection is raised at a preliminary stage of the trademark registration process. To consult with one of our TTAB attorneys about your case, contact: James Hastings is a member of the U.S. The plaintiff than has a final 15 days to provide a rebuttal to the evidence supplied by the Respondent. Assuming that a trademark is sufficiently distinct and does not infringe upon an existing trademark already registered in the USPTO (by being too similar to an existing mark or representing goods/services which are too similar to those of an existing mark), the trademark will be eligible for registration in the USPTO. Reasons for responding to a Trademark objection The current trademark will be rescued from being abandoned or denied and will be regarded for any further processing. available under the jurisdiction of the Trademark Trial and Appeal Board (TTAB) are akin to real, bona fide lawsuits filed in federal court. An experienced professional can significantly improve chances of successful trademark registration by filing a professional response, addressing all the concers cited in the Trademark Examination report. i) The opposition period is three months, which is inextensible. Challenging trademarks after registratio… An opposition must be filed within three months of the date of publication of the EUTM Bulletin in which the application to be opposed is published. The Applicant, contrary to the required trademark registration provisions, never had a bona fide intention to actually use the mark in commerce when the trademark application was submitted. § 1052(d), as well as a descriptiveness refusal pursuant to Trademark Act Section 2(e)(1), 15 U.S.C. Remember, this is litigation so there are formal and meaningful rules which must be followed. Oftentimes, during the trademark registration process, the Trademark Registrar raises objections on the intended trademark if it violates rules and laws of trademark registration. Trademark Search Trademark Order TM Office Action. 2. § 1063(a) [Trademark Act § 13(a)] Any person who believes that he would be damaged by the registration of a mark upon the principal register, including the registration of any mark which would be likely to cause dilution by blurring or dilution by tarnishment under section 1125(c) of this title, may, upon payment of the prescribed fee, file an opposition in the Patent and Trademark Office, stating the grounds therefor, within thirty days after the publication under subsection (a) of section 1062 of this title of the mark sought to be registered.”. © ​​2020 Cohn Legal, PLLC. The trademark in question, when used in conjunction with the applied for goods/services may lead to consumer confusion with the Opposer’s trademark (whether the Opposer’s trademark is registered or merely used in commerce). Remember, one of the most common grounds for a Trademark Opposition is the claim that the newly published trademark would create a likelihood of consumer confusion with the Opposer’s existing trademark (under Section 2 (d) of the Trademark Act). (This article has been updated for 2021). Once your notice of opposition is filed, the applicant has thirty days to respond with an answer. However, where the EUTM is designated in an International Registration, the three month opposition period will start one month after the initial republication by the EUIPO. If the losing party is not satisfied with the decision, he/she may appeal to the United States Court of Appeals of the Federal Circuit. In response to the trademark opposition, the trademark owner has to give a suitable reply to such Trademark Opposition. Time limits for filing Notices of Opposition or Requests for Extensions of Time to Oppose are strictly enforced. How to answer a trademark opposition is an important first step in defending your trademark rights. When filing the answer to the opposition, there are several fundamental things to keep in mind. Stage 1 – Filing a Notice of Opposition/Filing a Counter-Statement: Any person wanting to oppose a mark can do so by filing a Notice of Opposition on the prescribed form along with the prescribed fee within four (4) months of advertisement of the mark. This authorization is made by a Power of Attorney by the virtue of Form TM48 under the Trade Marks Act, 1999. Step #5. Of course, there are certain instances under which the TTAB will grant an extension of time to answer if the defendant can show good cause. Very often, trademark holders will hire a trademark monitoring service to periodically check the Official Gazette and flag any pending trademarks that might infringe on the senior holder’s mark so that the senior has the chance to oppose the mark. 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