Application for registration as Registered user
- An application to the Registrar for the registration under section 49,of a person as a registered user of a Registered trademark,shall be made jointly by that person as the registered properietor of the trademark registration,in Form TM-28 and shall be accompanied by the following:
- The agreement in writing or a duly authenticated copy thereof,entered into between the registered properietor and the proposed registered user with respect to the permitted use of the trademark;
- the documents and correspondence required to the trademark registration,if any mentioned in the agreement referred to in clause (a) entered into between the registered proprietor and the proposed registered user with respect to the permitted use of the trademark or duly authenticated copies thereof.
2.There shall be filed along with the application ,an affidavit by the registered properietor or some persons authorized,to the satisfaction of the Registrar ,to act on his behalf testifying to the genuineness of the document, accompanying the application and containing:-
- The particulars and statements required by clause (b) of sub-section (1) of section 49
- the precise relationship between the registered properietor and the proposed registered user,if any for instance ,whether their relationship is as principal and subsidiary company or whether there is common control between their business;
- a statement as to the goods or services in which the registered properietor is dealing together with details as to whether the trademark which is the subject of the application has been used by him in the cause of trade before the date of the application and if so the amount and duration of such user.
3.The registered properietor and the proposed registered user shall also produce and file such others documents and furnish such other evidence and information as may be required for trademark registration in that behalf by the Registrar.
4.No Application shall be entertained unless the same has been filed within six months from the date of the agreement referred to in Class (a) of sub-rule(1).
5.Notwithstanding anything contained in sub-rule(1) ,where more than one application for trademark registration as the proposed user is made by the same properietor and the same proposed user in respect of trademarks covered by the same agreement ,the documents mentioned in sub-rule(1) may be filed with any one of the applications and a cross reference to such documents given in the other application or applications.
Particulars to be stated in the agreement
The Agreement referred to in clause (a) of sub-rule(1) of rule 80 shall,
- set out of particulars specified in sub-classes(1) to (4) of clause(b) of sub-section(1) of section 49;
- disclose the terms as to royalty and other remuneration payable to the registered properietor by the proposed user for the permitted use of the trademark;
- provide means for bringing the permitted use to an end which the relationship between the parties or the control by the registered properietor over the permitted use ceases;and
- Contain a condition that when the trademark registration is used by the proposed registered user in relation to his goods are services ,other than the goods are services for export,the mark shall be so described as clearly to indicate that,it is being used only by way of permitted use.
Consideration by the Registrar
The Registrar under sub-section (2) of section 49 ,shall,if satisfied that the application and the accompanying documents comply with the relevant provisions of the Act and the Rules, and the matters specified in sub-classes (1) to (4) of clause (b) of sub-section (1) of section 49 ,Registrar the proposed user in respect of those goods or services as to which he is so satisfied.
Hearing before refusing an application or it accept it conditionally
- The Registrar shall give a notice in writing to the applicants where he proposes to accept the application subject to any conditions ,restrictions or limitations.The notice shall state the grounds on which the registrar proposes to issue such orders and shall inform the applicants of trademark registration that they are entitled to heard.
- Unless from the one month from the receipt of the notice mentioned in the sub-rule(1) the registered properietor and the proposed user apply for a hearing,the Registrar may refuse the application or to accept it conditionally,as the may be.
- If the proprietor and the proposed user apply for a hearing the registrar shall appoint the time for the hearing within two months and shall give them not less than a month’s notice of the time so appointed.
- After hearing the properietor and the proposed registered user ,the Registrar shall decide whether to accept the application for to refuse it or to accept it conditionally .
- The Registrar shall ,communicate in writing his order on the application of trademark registration to the applicants and to other registered users of the mark,if any.
Entry in the Register by the Registered properietor
- Where the Registrar under sub-section (2) of section 49 accepts an application for registration as registered user ,he shall proposed user as registered user.
- The entry of the Registered user in the registrar shall state the date on which the application for trademark registration of the user was made ,which date shall be deemed to be the date of registration as registered user of the person mentioned in the entry.shall also state ,in addition to the particulars and statements mentioned in paragraphs (1) to (4) of the sub-section (1) of the section 49,the name,description and principle place of business in India of the proposed user and if he does not carry on business in India his address for service in India.
Registration not to imply authorization to transmit money outside India
The Trademark Registration as proposed user of a trademark ,shall not be deemed to imply an approval,of the agreement in so far as it relates to the transmission of any money,as consideration for the use of said trademark,to any place outside India.
Notification of registration as Registered user
A notification in writing of the registration of a proposed user shall be sent by the Registrar to the registered properietor of the trademark,to the proposed user and to every other proposed user whose name is entered in relation to the same trademark and shall also be inserted in the Journal within three months of such entry in the Register.
Registered proprietor’s application to vary entry
An application by the registered proprietor of a trademark for the variation of the registration of a registered user of that trademark under clause (a) of sub-section(1) of section 50 shall be made in Form TM-29 and shall be accompanied by the statements of the grounds on which it is made,and where the registered user in question consents,by the written contents of the proposed user.
Cancellation of Registration of Registered user
- An application for the cancellation of the registration of a proposed user under sub-clause(b) to sub-clause(d) of sub-section (1) of section 50 shall be made in Form TM-30 or Form TM-31,as the case may be ,and shall be accompanied by a statement of the grounds on which it is made.
- In case of the registration of a registered user for a period,in accordance with paragraph (4) of Sub-clause(b) of sub-section (1) of section 49,the Registrar shall cancel the entry of the registered user at the end of that period.Where some or all the goods or services are omitted from those in respect of which a trademark is registered ,the Registrar shall at the same time omit them from those specifications of proposed users of the trademark in which they are compromised. The Registrar shall notify every cancellation or omission under this sub-rule to the registered users whose permitted use is effected thereby and to the properietor of the trademark.
Power of Registrar to call for information with respect to registered user
The Registrar may at any time,by notice in writing ,require the registered proprietor to furnish him information under sub-section (1) of section 51 and take an action in accordance with the sub-section (2) of that section.
Procedure on application to vary entry or cancel registration of registered user
- The Registrar shall notify the writing applications under section 50 to the registered properietor and each proposed user (not being the applicant in either case) of the trademark.
- Any person notified under sub-rule (1) who intends to intervene in the proceedings ,shall within the period of one month of the receipt of further notification provide notice to the Registrar in Form TM-32 .The Registrar shall thereupon provide or cause to be provided copies of such notice and statement on the other parties ,namely,the applicant,the properietor ,the proposed user whose registration is the subject matter of the proceeding in question and any other registered user who intervenes.
- In the case of any application created under section 50,the applicant or any person noted under sub-rule(1),may within the provided time or times as the Registrar may appoint,produce evidence in support of his case,and the Registrar after providing the parties on opportunity of being heard,may accept or refuse the application or accept it subject to any conditions, amendments, modifications or limitations of the trademark registration.
- In the case of application for varying under registration under paragraph (a) of sub-section (1) of section 50 or cancelling any registration on any of the grounds mentioned in terms (1) to (4) of sub-clause (c) of sub-section(1) of section 50 ,the Registrar shall consider the application together with any notice in Form TM-32 and statement of case filed and shall dispose of the application and also inform the parties in writing accordingly.
Registered user’s Application
An application under sub-section (2) of section 58 shall be made in Form TM-16 or Form TM-33 or Form TM-34 or Form TM-50 as may be appropriate by a proposed user of a trademark or by such person as may satisfy the Registrar that he is entitled to act in the name of a proposed user;and the Registrar may need further evidence by the affidavit form.
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