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1 Apr 2019

Why user documents asked while submitting trademark for registration?

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Suppose you want to file a pharmaceutical trademark, department may ask for the user documents. User documents are proof that shows you are marketing / selling the brand in the market.

User documents can be

  • Sales Invoice
  • Purchase Invoice
  • Brand advertisements like visual aid, catch cover, LBLs etc.

What is it’s importance?

If you failed to give the data, it shows that your trademark is proposed to be used, not actually launched in market.

Deeper Insight : Differentiation of first-to-use & the first-to-file

  • If at all, there is a issue of the trademark infringement (similar marks) then department may give weightage to First-to-use mark, ownership of a mark goes to the first-to-use, not the first-to-file.
  • To acquire ownership of a trademark, it is not enough to have invented the mark first or even to have registered it first; the party claiming ownership must have been the first to actually use the mark in commerce. Therefore, a party pursuing a trademark claim must meet a threshold “use in commerce” requirement.
  • The term “use in commerce” means the bonafide use of a mark in the ordinary course of trade. The use must be more than merely to reserve a right in a mark. Trademark protection is granted only to marks that are used to identify and to distinguish goods or services in commerce, which typically occurs when a mark is used in conjunction with the actual sale of goods or services.

“use in commerce” meaning

That being said, trademark ownership is not acquired by federal or state registration, although registration is absolutely beneficial. Ownership rights flow from prior use, either actual or constructive. As the Federal Circuit observed: “[t]he requirements of both adoption and use devolve from the common law; trademark rights in the United States are acquired by such adoption and use, not by registration.” Therefore, even if you had a trademark registration and it was later cancelled, the underlying common law rights in a mark continue.

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