User Affidavit - Trademark Statement of Use

User affidavit or trademark statement of use is an affidavit that must be attached to a

trademark registration application when previous use claim is made. Under the Trade Mark Rules, 2017, the trademark user affidavit has been made a mandatory attachment with all trademark applications claiming prior use. In this article, we look at User Affidavit under Trademark Rules in detail.

Date of First Use

Date of first use of trademark must be mentioned on all trademark application. Date of first use anywhere is the date when the goods were first sold or transported, or the services were first rendered, under the mark. In case the mark was never used, then date of first use can be "Proposed to be used". If the trademark is proposed to be used, user affidavit or trademark statement of use need not be attached. In case a date of use is mentioned in the trademark application, then user affidavit must be attached with the trademark application.

Trademark Statement of Use

In the Trademark Rules, 2002, the filing of user affidavit was left at the discretion of the Trademark Registrar, even if previous use of trademark was claimed.

Trademark Rules, 2002 mentioned that:

"An application to register a trade mark shall, unless the trade mark is proposed to be used, contain a statement of the period during which, and the person by whom it has been used in respect of the goods or services mentioned in the application. The Registrar may require the applicant to file an affidavit testifying to such user with exhibits showing the mark as used.”

Under Trademark Rules, 2017, the rules pertaining to user affidavit has been changed. Trademark Rule 25 (2017) state that:

“An application to register a trademark shall, unless the trademark is proposed to be used, contain a statement of the period during which, and the person by whom it has been used in respect of all the goods or services mentioned in the application. In case, the use of the trade mark is claimed prior to the date of application, the applicants hall file an affidavit testifying to such use along with supporting documents.”

Hence, all trademark filing made currently in India require user affidavit, if previous use is claimed.

User Affidavit Format

The following trademark user affidavit format can be used for trademark registration applications filed in India.

TRADEMARK USER AFFIDAVIT

In support of the request made to apply for Trade Mark for the mark "MARK" under Trademark Class"00". I, Mr.

<Authorised Signatory>, <Designation> of <Applicant Name>, having registered office at <Applicant Address>, do hereby solemnly affirm and declare as follows:

That I am an Indian by nationality and residing at <Residing Address>.
I state that I am familiar and well conversant with the facts and circumstances of the present matter and competent and authorized to swear this affidavit and make the necessary statement in respect thereof.
A trademark application is hereby made for registration of the accompanying trade mark in class <00> and the said mark has been continuously used since <First Use Date> in respect of the said <goods/services>.

I solemnly state that the contents of this affidavit are true to the best of my knowledge and belief and that it conceals nothing and that no part of it is false.

Signature

Place: Date:

VERIFICATION I above named deponent do hereby verify that the statements made by me on behalf of the applicant under Para 1 to 3 are true and correct to the best of my knowledge and belief & nothing is false and nothing is concealed in it.

Signature

Place: Date:

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Frequently Asked Questions

Common questions about Trademark User Affidavit.

A trademark user affidavit, also known as a statement of use, is a legal document that must be submitted along with a trademark registration application in India if the applicant claims previous use of the mark. It serves as evidence that the trademark has been used in commerce for the specified goods or services.

A trademark user affidavit is required when an applicant claims that the trademark has been used before the filing date of the application. If the mark is proposed to be used in the future, a user affidavit is not necessary.

A trademark user affidavit should typically include the following information: the mark being applied for, the class of goods or services, the date of first use of the mark, a statement testifying to the use of the mark, and supporting documents or exhibits demonstrating the actual use of the mark.

The trademark user affidavit should be signed by an authorized signatory of the applicant company, such as a director, partner, or authorized representative who has knowledge of the facts related to the use of the mark.

If a trademark user affidavit is not filed when required, the trademark application may be considered incomplete or deficient, which could lead to delays in the registration process or even the rejection of the application.

In some cases, it may be possible to amend or correct the information provided in a trademark user affidavit after filing, depending on the circumstances and the discretion of the Trademark Registrar.

There is no specific time limit or restriction on how far back the date of first use can be claimed in a trademark user affidavit, as long as the claimed date is accurate and supported by appropriate evidence or documentation.

Supporting documents that can be included with a trademark user affidavit may include invoices, advertisements, product catalogs, packaging materials, or any other relevant materials that demonstrate the actual use of the mark in commerce for the specified goods or services.

Yes, a trademark user affidavit is required for international trademark applications filed in India under the Madrid Protocol if the applicant claims previous use of the mark in India.

Yes, a trademark user affidavit can be executed outside of India, as long as it is properly notarized or legalized according to the requirements of the jurisdiction where it is executed.