The Trademark Registrar designates trademark examiners to check trademark applications. If there are violations of the Trademark Act or Rules, trademark examiners will raise an objection after reviewing trademark applications. The terms “absolute grounds for refusal” or “relative grounds for refusal” are typically used to describe trademark objections. The trademark applicant may react to the trademark objection by providing proof of use if they are an honest user of the mark and it has grown distinctive. We examine the proof of usage that may be offered in response to a trademark objection in this article.
When a request for apply for trademark online is made based on the assertion that a trademark is a well-known mark, market share statistics can be provided as proof of use by major enterprises. Market share would not be relevant if the trademark application came from a small business, and market share information cannot be utilized to support the trademark application.
The cost of advertising can be used as proof of use for a minimum of three years prior to the application filing date. Evidence of advertising expenditures should be segmented and given under various categories, such as radio, newspapers, trade magazines, etc.
The Registrar will take into account a number of crucial factors, including the amount of advertising spend and the geographic area where the advertisement was placed (nationally vs. locally).
For instance, the Trademark Examiner will anticipate a sizable advertising budget equivalent to the sales/advertising ratio of other companies in the industry if the trademark application is for consumer goods.
Sales volume data may be used as proof of trademark use. For a period of around five years prior to the date of application, sales turnover should typically be provided for the sales of goods/services under the mark. The turn over for the time should be significant to support the trademark application if the period of use is shorter.
The likelihood that the mark will be accepted increases with turnover. Duration of usage, turnover, and advertising are all taken into account together since turnover and/or advertising may be able to make up for a brief period of use.
Turnover numbers might not be the best yardstick for evaluating a company in some sectors. For Whatsapp, statistics on sales turnover, for instance, wouldn’t matter. Other metrics, such as subscribers, account holders, investors, and, if appropriate, the number and geographic distribution of branches, could be used to illustrate the level of use in such circumstances.
Brochures, Price Lists and Invoices
Brochures, catalogs, price lists, invoices, and advertising can be used to back up a trademark application and demonstrate how and with what products/services the mark has been utilized. All submitted exhibits must be dated earlier than the application date.
Domain Names & Websites
It is possible to register domain names as trademarks. The use of other domain names and websites can also be utilized to verify usage evidence. When submitting a domain name or website as proof of usage, the proof must demonstrate that the appropriate goods or services have been made available for purchase using the domain name. Therefore, significant usage of the domain name on websites that sell products or services may qualify as using a trademark.
The distinctiveness of the trade mark may also be attested to by third parties or industry experts as evidence of use. Such proof or declarations may come from consumers, chambers of commerce, or other business and professional organizations.
Customer surveys are acceptable as usage proof. However, the surveyor must exercise caution to ensure that the timing, sample selection, and survey questions are all compliant with trademark laws.
Questions like “is the sign considered as the applicant’s trade mark,” for instance, must not be leading. The question “What, if anything, does this picture mean to you?” is an example of an open-ended, broad question.