Under the Trade Marks Rules, 2017, a trademark application is filed on Form TM-A. The 2017 Rules consolidated what were previously multiple forms into this single one.
Before you file
Two things are worth settling first.
Your classes. India follows the Nice Classification, and fees are charged per class. See trademark classes in India, and use the TMClass tool, which includes the Indian trademark office and flags terms that may not be accepted here.
A search. The most common ground of refusal is a prior identical or similar mark, whether pending or registered. A trademark search before filing tells you what you are walking into.
What Form TM-A requires
The form is divided into several segments. The main ones:
Nature of the application. Whether it is a standard mark, certification mark, collective mark or series mark. See types of trademark application.
Nature of the applicant. Individual, start-up, small enterprise, or others. This determines the official fee.
Applicant details. Name, address, nationality and legal status.
Details of the agent, where one is appointed.
Details of the trademark, including the representation of the mark.
Class and description of goods or services.
Statement of use, or proposed to be used.
Priority claim, if any.
Verification and signature.
Official fees
The official fee depends on two things:
- The nature of the applicant. Individuals, start-ups and small enterprises pay a lower fee than companies and other entities.
- Whether the application is filed online or physically. E-filing attracts a lower fee.
Fees are charged per mark, per class.
Use or proposed to be used
This is the decision applicants most often get wrong.
If the mark is already in use in India as at the filing date, the application claims a date of first use. That claim must be supported by an affidavit of use, filed with the application. Late filing is possible with an additional fee.
If the mark is not yet in use, the application is filed on a proposed to be used basis and no affidavit is required.
Commencing use after the filing date does not create a requirement to file an affidavit, unless the examiner specifically calls for one.
A claimed use date that cannot be evidenced is a liability rather than an advantage. It can be challenged in opposition and undermines the application. Claim use only where you can prove it.
Power of Attorney
Where an agent files on your behalf, a Power of Attorney is required. In India it needs only to be signed. Notarisation, legalisation and apostille are not required.
It can be filed after the application, with a late fee.
Priority
Where an application was filed in a Convention country within the preceding six months, priority can be claimed.
A certified copy of the priority document is required. File it with the application or within two months of the Indian filing date to avoid an objection.
What happens after filing
The application is examined, and either accepted or met with an examination report raising procedural or substantive objections. The reply window is one month.
If accepted, the mark is advertised in the Trade Marks Journal and is open to opposition for four months. If unopposed, it proceeds to registration.
Timeline: roughly ten to twelve months to registration in a straightforward matter, subject to Registry backlog. An opposition adds years.
Frequently asked questions
Which form do I use to file a trademark in India? Form TM-A, for all types of trademark application under the Trade Marks Rules, 2017.
Do I need a lawyer to file? No, an applicant can file directly. Whether you should depends on the mark and the risk. Objection rates are high, and a poorly drafted specification creates problems that surface years later.
Should I file on a use basis or proposed to be used? Claim use only if the mark is genuinely in use at the filing date and you can evidence it, since an affidavit of use is then required. Otherwise file as proposed to be used.
Does my Power of Attorney need notarisation? No. A simply signed Power of Attorney is sufficient in India.
Can I file for several classes in one application? Yes, multi-class applications are permitted. Fees are still per class, and an objection in one class can delay the whole application.
How long does registration take? Ten to twelve months in a straightforward matter. Backlogs and oppositions extend this considerably.
Useful official resources
- IP India e-filing portal
- IP India public search
- TMClass — includes the Indian trademark office
- Trade Marks Act, 1999
Filing in India for the first time? Talk to us. Getting the specification and filing basis right at the outset avoids most of the problems that surface later.