When RTI is away; the Registry will play!
There are several resources online that will tell you how to register your trademark in India, with a neatly drawn flow chart for clarity and some websites that promise trademark registration in a day or even faster. What you won’t be told is the time that it will take you from one step to another on that flow chart and the constant tussle you have to face with the trademark office.
At the present performance of the trademark office it takes approximately 15 to 18 months for a trademark application to be examined and an examination report to be issued, a closer look reveals that there is no specific order in which a trademark application is taken for examination though there are several notices issued by the trademark office reiterating that the applications should be taken in the order of filing. Additionally there is absolutely no sign of accountability on the work of the trademark officials albeit the frequent transfers and sacking of trademark officials have a major impact on the morale of the officials which among other reasons causes prolonged delays and cannot be overlooked.
Other than your regular follow up letters and your persistent visits to the trademark office and requesting an update on your trademark applications, in the recent past there is a Good Samaritan who will come to your rescue – The Right to Information Act of 2005. In this post, we intend on examining the scope of an application seeking information under the Right to Information Act 2005, (RTI) in trying to gain information on your trademark application and its impact on the prosecution of your trademark application.
The right to information has been interpreted as a fundamental right under Article 19(1) of the Indian Constitution. Article 19 (1) says that every citizen has freedom of speech and expression. As early as in 1976, the Supreme Court of India held in the case of Raj Narain vs. State of UP that people couldn’t speak or express themselves unless they knew. Therefore, right to information is embedded in article 19. In the same case, Supreme Court further stated that India is a democracy and that the people are the masters. Therefore, the masters have a right to know how the governments, meant to serve them, are functioning. Moreover, every citizen pays taxes. The citizens therefore, have a right to know how their money was being spent. These three principles laid down by the Supreme Court were the precursors to the RTI Act.
For the first time in the history of independent India, the RTI Act is the only law which fixes direct accountability on an officer for non-performance. The information sought by you, has to be responded to by the Public Information Officer (PIO), within a period of 30 days from receipt of your application. If the concerned officer does not provide information in time, the Information Commissioner can impose a penalty for every day of delay. A penalty can also be imposed for providing false and incomplete information or for rejecting your application for malafide reasons. This fine is deducted from the officer’s personal salary.
How effective is the RTI for your trademark applications?
Under normal circumstances, a regular follow up letter will not be acknowledged, let alone reach the respective officer in charge of the files. However under the RTI it is mandatory that the trademark officials respond in 30 days. If they don’t do that, their salary could be deducted. We have listed a few sample questions that you can ask in your RTI application that is likely to wake the officials up. Now, it is not easy to answer these questions.
The first question is – please provide the daily progress made on trademark application no 123456?
You know that no progress has been made on the trademark application but the trademark officials cannot write that they have not acted for so many months. That would be admission of guilt on paper.
The next question is – please provide the names and designations of the officers who were supposed to take action on my trademark application?
If the trademark office provides names and designations of the officials, their responsibility gets fixed. No officer wants to be held responsible, let alone have it in writing. So, the moment one files such an application, his/her pending work is done and the official sends a response stating that the work is already completed even before the application was filed.
The RTI application however has its own limitations, and the responses that one receives may often leave you puzzled as to whether to laugh at or curse the ingenuity of the trademark officials in avoiding answering questions that shows that the officer merely wanted to respond within the stipulated limit of 30 days. The answer that you get through an RTI application, in all probability will state that the office is understaffed, which in reality is the truth and the application is still being processed. And while that doesn’t achieve much on its own, if you follow it up with another RTI application in a month of two, the officials have to keep pulling out the file or asking the responsible person to do so.
There have been occasions when RTI applications have worked brilliantly. For instance a request to record an assignment of a trademark was pending for over a period of two years, and after sending two RTI’s within a span of two months despite getting vague answers, the request finally did see the light of day.
Similarly RTI’s on amendment applications, opposition matters and most issues one encounters with the trademark office have slowly yielded results.
The bottom line therefore would be that the RTI Act is a very effective weapon in your armory. It works on the principle of pressurizing the Registry into doing something.