Filing a trademark application is only part of the journey. At various stages during and after registration, you may be required to prove that you are actually using the mark in commerce. This is where the trademark user affidavit becomes essential. It serves as a sworn declaration confirming that your trademark is actively being used in connection with the goods or services specified in your application.
In India, the Trademark Registry and Examiner rely heavily on evidence of usage when evaluating applications, resolving objections, and handling opposition proceedings. A properly prepared statement of use can mean the difference between a successful registration and a refused application. Whether you are filing a fresh application with a claimed date of use or responding to an examination report, understanding how to draft and submit this affidavit is critical for protecting your brand.
This guide covers the purpose, contents, preparation process, and common pitfalls associated with the trademark user affidavit under Indian trademark law.
What Is a Trademark User Affidavit?
A trademark user affidavit is a sworn statement, executed on stamp paper and notarised, that declares the applicant has been using the trademark in trade and commerce. It typically includes the date since when the mark has been in use, the nature of goods or services, the geographical area of usage, and the manner in which the mark appears on products, packaging, invoices, or marketing materials.
This document carries legal weight because it is made under oath. Any false or misleading claims in the affidavit can attract penalties under the Indian Penal Code and the Trade Marks Act, 1999. The Registrar treats it as substantive evidence when assessing whether a trademark has acquired the distinctiveness or reputation needed for registration.
The affidavit is not a standalone filing. It accompanies other documentation such as invoices, product photographs, advertising samples, and sales records that collectively demonstrate genuine commercial use of the mark. Think of the affidavit as the narrative thread that ties all your evidence together into a coherent, legally admissible account.
When Is a Trademark User Affidavit Required?
The requirement for a user affidavit arises in several scenarios during the trademark lifecycle. Understanding each situation helps you prepare the right documentation at the right time.
| Scenario | Why the Affidavit Is Needed |
| Filing with Prior Use Claim | When you claim a date of first use in your TM-A application, the Examiner may ask for proof of that usage through a sworn affidavit. |
| Examination Report Response | If the Examiner raises objections regarding distinctiveness or descriptiveness, a user affidavit helps establish acquired distinctiveness through prolonged use. |
| Opposition Proceedings | During opposition, both the applicant and opponent may submit affidavits to prove or challenge the usage and reputation of a mark. |
| Rectification or Cancellation | If a third party seeks to cancel your registration on grounds of non-use, an affidavit demonstrating continued use becomes your primary defence. |
| Trademark Hearing | Before the Registrar during a hearing, the affidavit is submitted as documentary evidence to support oral arguments about usage and reputation. |
In contested matters, the quality of your trademark user affidavit can directly influence the outcome. Whether you are defending against a trademark opposition or responding to an Examiner's report, this document must be thorough, accurate, and well-supported.
What to Include in a Trademark User Affidavit
A well-drafted trademark user affidavit contains several essential components. Omitting any of these can weaken your case or invite further objections from the Trademark Registry.
Begin with the deponent's identity. The affidavit must clearly state the full name, designation, address, and relationship of the person making the statement to the trademark applicant. If the applicant is a company, the deponent is usually a director or authorised signatory. For proprietorship firms, the proprietor executes the affidavit directly.
Next, include the trademark details. Mention the mark exactly as applied for, the application number, the class of goods or services, and the date of filing. If you claimed a specific date of first use in your application, reiterate it clearly in the affidavit. Consistency between the application form and the affidavit is critical.
The core of the document should describe the nature, extent, and duration of use. Explain how the trademark appears on products, packaging, labels, invoices, marketing materials, websites, and social media. Mention the geographical regions where the mark has been used and provide approximate annual sales turnover and advertising expenditure figures. The more specific and quantifiable your claims, the more persuasive the affidavit becomes.
Finally, attach supporting exhibits. These include sample invoices bearing the trademark, product photographs, packaging images, screenshots of websites or e-commerce listings, print advertisements, promotional brochures, and any media coverage mentioning the brand. Number each exhibit sequentially and reference them within the body of the affidavit.
How to Draft and Execute the Affidavit
Drafting a trademark user affidavit requires precision in both language and structure. Start by consulting with a professional experienced in trademark registration to ensure that the document addresses the specific requirements of your case. A generic affidavit rarely holds up under scrutiny.
The affidavit must be typed on non-judicial stamp paper of the value prescribed in your state. Stamp duty varies across Indian states, so verify the applicable amount before purchasing the paper. In most states, Rs. 10 to Rs. 100 stamp paper suffices for affidavits, though this can differ.
The language should be factual, direct, and free from exaggeration. Avoid vague claims like "the trademark is widely known" without backing them with numbers. Instead, state that "the trademark has been used continuously since 2015 across Maharashtra, Karnataka, and Delhi, generating annual sales of approximately Rs. 50 lakhs." Specificity lends credibility.
After drafting, the deponent must sign the affidavit in the presence of a Notary Public or a Magistrate. The notarisation authenticates the statement and confirms that the deponent swore to its truthfulness voluntarily. Retain a certified copy for your records and submit the original to the Trademark Registry along with all attached exhibits.
Common Mistakes to Avoid in a Trademark User Affidavit
One of the most frequent errors is claiming a date of use that cannot be substantiated. If your application states that the mark has been in use since 2012, but your earliest invoice is from 2018, the Examiner will flag this inconsistency. Always ensure your claimed date of use aligns with the documentary evidence you possess.
Another pitfall is submitting poor-quality exhibits. Blurred photographs, illegible invoices, and low-resolution screenshots undermine the strength of your affidavit. Every exhibit should be clear, legible, and directly relevant to the trademark in question. If the Examiner raises concerns about your evidence during the review, it may escalate to a trademark hearing where you will need to defend your documentation in person.
Failing to update the affidavit for ongoing proceedings is another common oversight. If significant time has passed since you first filed the affidavit, the Registry may request updated sales data, fresh invoices, or recent advertising samples. Keeping your evidence current demonstrates continuous and genuine use of the mark.
Some applicants also neglect to address objections raised in the examination report within the affidavit. If the Examiner cited lack of distinctiveness as the ground for refusal, your affidavit must specifically respond to that concern with targeted evidence. A response to a trademark notice without a well-prepared affidavit significantly weakens your position.
How the User Affidavit Strengthens Your Trademark Application
A compelling trademark user affidavit transforms a potentially weak application into a strong one. For marks that lack inherent distinctiveness, the affidavit provides the evidentiary foundation for claiming acquired distinctiveness. It demonstrates that through consistent use, advertising, and consumer recognition, the mark has come to identify your business as its source.
In opposition proceedings, a detailed statement of use can tip the balance in your favour. It shows the Registrar that your mark isn't merely a paper filing but an active commercial asset with real market presence. This carries significant weight when the opposing party challenges your right to register.
The affidavit also supports your case during trademark renewal disputes. If a third party challenges your registration on grounds of non-use under Section 47 of the Trade Marks Act, a well-maintained affidavit with recent evidence can effectively counter the cancellation petition and preserve your rights.
Conclusion
The trademark user affidavit is far more than a procedural formality. It is a substantive piece of evidence that can determine the success or failure of your trademark application, objection response, or opposition defence. A well-drafted statement of use, backed by strong documentary proof, establishes your mark's commercial presence and strengthens your legal claim to registration.
Investing time and effort into preparing this document correctly pays dividends throughout the trademark lifecycle. From initial filing to renewal disputes, the affidavit serves as your primary tool for demonstrating genuine, continuous, and bona fide use of the mark in Indian commerce.
Need assistance preparing a trademark user affidavit or managing your application? Patron Accounting's team of professionals can guide you through every step of the trademark registration process, ensuring your documentation is thorough, accurate, and legally sound.
