The Requirement of affidavit in support of documents before Registrar of Trade Mark
In the realm of intellectual property rights, trademarks play a vital role in protecting the distinct identity and reputation of businesses. The process of establishing a trademark as "well known" is essential to reinforce its strength and prevent infringement. When seeking a declaration of a well-known trademark, it is crucial to provide comprehensive evidence to support the claim.
In proceedings before the Registrar of Trademarks, evidence is the cornerstone for establishing the reputation and distinctiveness of a trademark. Evidence substantiates the claims made by the petitioner and allows the tribunal to evaluate the strength of the case. The purpose of filing evidence is to provide a factual basis for the arguments presented and demonstrate the widespread recognition and reputation enjoyed by the trademark in question.
Evidence can take various forms, including market surveys, consumer feedback, advertising expenditure, media coverage, sales figures, and other relevant documentation. By presenting this evidence, the petitioner aims to convince the tribunal that the trademark has acquired a high level of recognition, transcending its specific industry or geographical boundaries.
Recently, the issue of whether the tribunal can reject documents filed by the petitioner solely on the ground of an absent affidavit in support was examined by the Hon'ble High Court of Delhi. In a notable judgment, the court shed light on the matter and provided guidance to the Registrar of Trademarks in handling such cases.
This article examines the necessity of filing evidence in support of documents during proceedings before the Registrar of Trademarks, and explores the question of whether the tribunal can reject filed documents solely based on the absence of an affidavit in support.
Date of Judgment: 06.07.2023
Case No:CA Comm IPD TM 66 of 2021
Neutral Citation No: NA
Name of Hon'ble Court: Hon'ble High Court of Delhi
Name of Hon'ble Judge: Prathiba M Singh, H.J.
Case Title: Kamdhenu Limited Vs The Registrar of Trademark.
THE SUBJECT MATTER PETITION:
The Petitioner filed petition under form TM M seeking declaration of Trademark KAMDHENU as a well known Trademark.
THE IMPUGNED ORDER:
Vide impugned Order dated 23.04.2019 passed by the Ld. Registrar of Trademark, the Petition seeking declaration of Trademark KAMDHENU as a well known Trademark was rejected on the ground that the Petitioner has not filed any affidavit in support of evidence.
THE JUDGEMENT:
The Hon'ble High Court of Delhi was pleased to set order the order passed by the Registrar of Trademark and the Petitioner was granted an opportunity to file affidavit in support of the Petition. The Registrar of Trademark was directed to hear the subject matter Petition afresh.
THE REASONING:
As per the provisions of form TM M , the Petitioner is required to file the statement of case along with evidence and documents in support of petition seeking declaration of well known Trademark.
While adjudication of such petition, the Registrar of Trademark is required see if all conditions laid under the provisions of Action 11 (6) and (7) of Trademark Act 1999 has been met out or not?
The petition seeking declaration of well known trademark is guided by the provisions of Rule 124 of Trademarks Rule 2017. This provision mentions only evidence and documents. It nowhere mentions that while filing the evidence in support of this petition, any affidavit is mandatory required to be filed.
Though while adjudication of petition seeking declaration of well known Trademark, affidavit in support of documents in required to be filed, however Section 129 of Trademarks Act 1999 also provides that evidence may be oral evidence or evidence by way of affidavit.
Section 3 of Indian Evidence Act includes both the documentary evidence as well as oral evidence. Thus merely filing of evidence by way of affidavit will not be suffice in case no documents in support thereof are filed.
On the other hands documents filed without evidence by way of affidavit would।be suffice to support the case of Petitioner. Hence it can can not be said that evidence by way of affidavit is mandatorily required to be filed.
In view of the above , evidence in support of affidavit is not mandatorily required to be filed in a proceeding before Registrar of Trademark for declaration of well known Trademark:
THE CONCLUDING NOTE:
An affidavit in support of the documents is a legal declaration made under oath, confirming the authenticity and veracity of the evidence provided. It serves as a statement of truth and adds credibility to the supporting documents filed by the petitioner. Traditionally, affidavits have been considered an essential component of the evidence-gathering process, ensuring the accuracy and reliability of the information presented.
The Hon'ble High Court of Delhi, in its judgment, held that the absence of an affidavit in support should not automatically lead to the rejection of the filed documents. The court emphasized that the objective of requiring an affidavit is to ensure the credibility of the evidence, and it should not be used as a mere technicality to dismiss the petitioner's claim. Instead, the court suggested adopting a more liberal approach and allowing the petitioner an opportunity to rectify the omission by filing the affidavit subsequently.
The court further highlighted that the tribunal should focus on the substance and merit of the evidence presented, rather than relying solely on procedural irregularities. The overall purpose of the proceedings is to determine the well-known status of a trademark based on its reputation and recognition, and this objective should not be undermined by procedural technicalities.
In a proceeding for declaration of well known Trademark before the Registrar of Trademark, what is mandatorily required , is documents in support of the Petition , and not the evidence by way of affidavit. The Registrar can not reject the Petition merely on the ground that affidavit in support of documents have not been filed.
Advocate Ajay Amitabh Suman
IP ADJUTOR
Patent and Trademark Attorney
ajayamitabhsuman@gmail.com
9990389539
DISCLAIMER
Information contained herein is being shared in the public Interest. The same should not be treated as substitute for legal advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the facts and law involved herein.
