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Trademark Formality Check Fail in India

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Trademark Formality Check Fail in India

The Trademark Authority supervises and monitors the entire Trademark registration process to ensure that the registration is granted to the right Trademark without infringing any third-party rights or breaching the provisions of law. 

Therefore, when the applicant applies, the authority conducts a formality check of such an application to ensure the application is complete and contains all the relevant documents and data. Trademark Formality Check Fail often occurs in the Trademark registration process. Let’s understand in detail about the ‘Trademark Formality Check Fail in India’.

What is Trademark Formality Check Fail?

When the Trademark Registrar finds the trademark application incomplete or finds any defect in the application, it leads to a Trademark Formality Check Fail. A Trademark formality check is conducted by the Registrar at the initial scrutiny stage before generating the examination report. 

Registrar conducts the Formality check to ensure that the applicant has complied with the basic legal requirements while filing Form TM-A and has furnished all the required documents in the Trademark application or not.  

Reasons for Trademark Formality Check Failure

There can be various reasons for a Trademark Formality Check Fail, such as:

Incorrect Applicant Details:

The Trademark Formality Check Failure can occur due to the filing of incorrect applicant details, such as selecting the wrong entity type in Form TM-A or a spelling discrepancy between the application filed and the documents attached. Formality check can also fail if the entity name filed in the application does not match the MCA records. For example, XYZ Enterprises has applied by selecting the entity type as ‘Individual’, while the correct entity type is ‘Company/Body Corporate’.

Incorrect Trademark Class:

The Registrar can also change the status of the application to 'formality check failed' if the applicant has filled out the application by mentioning the wrong class of goods or services. This usually happens if the applicant's goods or services do not fall under the mentioned class. For example, a Trademark application is filed for software development under class 9. Whereas the correct class is Class 42.

Incomplete Information

The Registrar checks for the clarity and specification of goods/services and information in the application. If the Trademark application contains incomplete information, then the Trademark Registrar can change the status to 'formality check failed'. For example, the description of goods is mentioned as ‘beauty goods’, whereas it should be mentioned as ‘skincare and cosmetics products for women’.

Incorrect Fee Payment

This error is not very common, but it can be a reason for Trademark Formality Check Failure. Incorrect fee payment happens if the Private entity mistakenly pays fees under the individual category or a company claims fee benefits under the Startup/MSME category without having proper proof. For example, ABC Pvt. Ltd pays a fee for Form TM-A of Rs. 4,500, whereas the Company is required to pay Rs. 9,000/- government fee for Trademark Registration application.

Power of Attorney Errors

The Trademark Formality Check Failure occurs if the Power of Attorney (POA) is not uploaded under TM-48 if the Trademark application is filed through a Trademark attorney or agent, or if the filed POA is not properly signed or contains incomplete information. For example, if the Power of Attorney (POA) attached to the application is filed by a person who is not authorised to apply.

How to Resolve Trademark Formality Check Failure?

Trademark Formality check failure can happen for any of the reasons provided above. However, it can be resolved through these simple steps:

Check Application Status

Log in to the IP Registry Portal and check the status of your applied Trademark. If the status shows “Formality Check Fail”, it means the Trademark application has failed the formality check. Click on the application number and view the reason for the formality check failure given by the registrar.

Prepare Corrected Documents

After viewing the reason for the formality check failure, you should start by preparing the documents or gathering the information as required by the registrar to remove the failure status of the application.

File Rectification

Upload the rectified documents and the information as required through the IP portal and submit the documents. After submitting, save the acknowledgement receipt as generated. Check the application status after a few hours/days through the IP portal.

Impact of Trademark Formality Check Failure

Trademark Formality check failure is one of the obstacles faced during the Trademark registration process. The Registrar provides an opportunity to the applicant after a formality check failure to rectify the defects. The Formality check failure can have the following impacts:

  • It causes delay in the Trademark registration process.
  • If the applicant does not file the revised documents on time, it can result in abandonment of the Trademark.
  • It can increase the chances of someone else applying and registering the Trademark before the applicant. 
  • The application will not move to the examination report stage until it passes the formality check stage.

How can Patron help you pass the Trademark Formality Check?

A registered Trademark provides various benefits, but getting the Trademark Registered is not an easy process. It requires professional guidance at every stage. Patron Accounting can assist you with Trademark Formality Check by:

  • Reviewing the draft Trademark application to remove any potential defects.
  • Providing Expert assistance to identify the right class of goods or services to write in the Trademark application.
  • Helping in filing error-free documents and applications.
  • Reducing the chances of Trademark formality check failure.
  • Assisting in filing rectified documents on time.

Conclusion

Trademark formality check failure occurs when the Trademark Registrar finds any defect in the Trademark application. Formality check is done at the initial stage by the Registrar. Trademark formality check failure does not mean rejection of the trademark application. However, if the applicant does not respond in a timely manner, it can lead to abandonment of the application. 

Patron accounting team can help you avoid formality check failure by ensuring the completeness of the application. Careful filing, correct documentation, and timely response can increase the chances of Trademark registration without any objection. 

Frequently Asked Questions

Have a look at the answers to the most asked questions.

FAQ Illustration

After the Trademark passes the formality check, it moves to the examination stage, where the registrar checks for the similarity under Section 9 and Section 11 of the Trade Marks Act, 1999.

If the Registrar of Trademarks rejects your Trademark application, you can file an appeal before the Intellectual Property Division (IPD) of the High Court.

You can see who objected to the Trademark by:
Visiting IP India’s official website.
Log in and go to Trademark application status and enter your application number.
Click on the application number and see the details of the objection/opposition.
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