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Madrid Protocol vs National Applications for Trademarks in India – The problem of ‘use’

India became a member of the Madrid Protocol on July 8, 2013 and since then has received about 13768 applications designating India and has filed 155 applications under the Madrid Protocol. While there have been several debates on the best route to take in terms of protecting international brands in India, and both have good arguments, there is one issue that I would like to deal with today – the claim of use of your trademark in India.

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Examination of applications filed under the Madrid Protocol designating India:

The Indian trademark Office recently started objecting to several applications filed under the Madrid Protocol (they used that 18 month provisional refusal allowance to the hilt). The main ground of objection to applications filed under the Madrid Protocol is that similar marks are already existing on the Indian trademarks register. Upon reviewing the examination report and the cited marks one would realise that several of these marks cited in the examination report have been filed or have claimed to have been used in India from a date much later than the date when the applicant commenced use of the trademark globally or in India. A major disadvantage with applications designating India and filed through the Madrid Protocol is that the applications are automatically filed on a ‘proposed to be used’ basis in India without claiming any usage.

Enquiries with colleagues of mine, and the Indian Trademark Registry officials have revealed that there is no provision for applicants to either state when the mark was used in India or if they want to file on a “proposed to be used” basis. This despite the fact that India has reserved the right to require a specific declaration of intention to use as per Rule 7 (2) of the Common Regulations.

Importance of claiming USE of your trademarks in India:

Being a common law country, protection of trademark rights in India is based on prior use as opposed to protecting rights of the person first to file. Claiming usage in your trademark applications plays an important role in terms of arguing acquired distinctiveness and, proving prior adoption or use in oppositions or any action against third party infringers.  The Indian courts hold a very broad view of the term ‘usage of a mark in India;’ and have gone to great lengths to broaden its scope in order to protect the legitimate interests of the genuine trademark owners. Users from India accessing the website where the trademark is available, trans-border reputation and even mere presence of advertisements containing the trademarks in International publications circulated in India amounts to usage of the trademark in India.

Even though the trademark office allows the applicant to file evidence of usage at the time of responding to the examination report for an International Registration designating India, it may prove beneficial to file a national application instead and have that claim of usage clearly documented. In case of a Madrid Protocol application (where use isn’t claimed), in an opposition proceeding the burden of proving use of the mark in India will fall upon the applicant as opposed to a national application claiming use of the mark in India, where the burden of proving non-use will fall upon the opponent.

So while this doesn’t put to rest any debates on the advantageous of filing a national application as opposed to an application under the Madrid Protocol designating India, if your mark has been used in India, this may be a factor to consider when deciding how to go forward!