Trademark Formalities Check Fail and Solutions
Formality check fail in trademark is the initial stage in the procedure of Trademark Registration. An applicant makes an application for registration of a trademark which is still not used by him; this operates as a claim on the brand, till the time the applicant does not abandon his claim. If another person makes an application for a similar trademark, then the request of earlier applicant is superior and will be preferred.
The trademark can be done through E – filing and also the proprietor of a mark may apply to the registrar in writing and file in the office of the trademark registry for the registration.
But, here, we are discussing the stages an application goes through e – filing. The process of trademark registration does not finish with the filing of a trademark application with the department. In the process, an application goes through certain different stages before it is registered.
There are some stages where the registrar might raise an issue which needs to be solved by the applicant or an agent without which the procedure will not continue. The application has chances to be abandoned or might get rejected by the department. Hence, the proprietor needs to check the status of the application regularly.
The significant stages which an application meets in the process to get registered are as follows:
- Send to Vienna Codification
- Marked for Examination
- Formality Check Pass
- Formality Check Fail
- Ready Show Cause Hearing
- Accepted Before Advertisement
- Accepted & Advertised
What is meant by ‘Formality Check Fail’ in trademark?
The Trademark status “Formality Check Fail” which is a very initial stage of examining the application, which means that essential information and documents provided by the applicant have some default in it.
Some of the reasons why an application faces Formality Check Fail in trademark are as follows:
The trademark classes are divided into 45 classes, Goods under class 1 to 35 and Services under class 36 to 45 and according to this classification, we are supposed to mention our Goods and Services while applying for Trade Mark Registration which is of utmost importance. The exact class needs to be selected at the time of filing an application if the class is not correct your application will not proceed further and marked as “Formality Check Fail” in trademark by the department. For example: if an applicant wants trademark registration for coffee which falls under class 30 and mistakenly mentions class 34 then in such a case the application would stop from further examination and will be marked as “Formality Check Fail.”
Inappropriate goods or service description
In the application, the description of goods or services in which the applicant is dealing need to be provided. The description must be according to the products using by the applicant and mentioned in Nice classification (NCL) provided by the WIPO World Intellectual Property Organization. When the selected class and its description does not match with the applicant’s application then in such case the application is marked with the status Formality Check Fail in trademark.
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The process for TrademarkRegistrationcan further stretch if all the required documents are not submitted. This includes putting up an application without important documents like power of attorney, MSME Certificate, etc.
While filing the application form, one has to select the right category under which the application form is to be submitted. The categories are divided into four parts, and they are:
- Small Enterprise
- Individual/Sole Proprietor
Under Individual/Sole Proprietor category Power of Attorney notarized on a stamp paper of Rs. 100 (One Hundred) need to be filed in a pdf form. Likewise, different documents need to be submitted according to the categories above mentioned by the applicant during the time of filling the application.
Hence, if proper documents are not submitted, then the application shall come under the status “formalities check fail”.
It might happen that the uploaded documents are corrupted, or the examiner is unable to open and view them. In such a case, the application of a trademark will be marked as formalities check fail in trademark and ask to submit the documents again.
All the information of the applicant must be filled as required by the application Form TM – A. The name, address, state and other details of the applicant must be as per power of attorney; the Agents registration no. , category of mark, class, products description, etc., Also if the Logo or Word Mark or any category of the mark is in a language other than English or Hindi the translation and transliteration of such must be adequately provided, otherwise, it will be marked as “Formalities Check Fail.”
Logo and Brand Name are different:
If the logo and the provided brand name does not match from each other and the words mentioned in the logo do not match with the brand name, then in such a case department will mark the status as ‘Formality check fail’. Hence, both the logo and the brand name must correlate with each other.
The Logo needs to be Unique
A Logo needs to be different and unique and should not be a series mark. Series Mark means several Trademarks which resemble each other as to their material particulars and differ only as to matters of a non-distinctive character not substantially affecting the identity of the Trade Mark. Therefore, if the logo is not unique, the department can mark the application as “Formality Check Fail”.
Actions to take
The department will issue a notice for formality check fail in trademarkalong with reasons why the application could not proceed to examination. The applicant is supposed to file the reply within 30 days from the date of issuance of the notice. If an action is not taken within the specified time, the application shall be treated to have been ABANDONED for lack of prosecution under section 132 of Trade Marks Act, 1999.
Procedure For filling the reply
The Agent or the Applicant can file the formality check response by login to the IP India Online Filing of Trade Mark and select the option “MISCELLANEOUS REPLY” by selecting New Form Filing and then selecting “REPLY TO FORMALITY CHECK (MIS-F)” with their application number.
If the Trade Mark department is satisfied with the reply, then the application will proceed for the next stage. If the reply is not passable, then the department can reject the application.
One can decrease this stage by filling the right information in an online trademark application. Hence, to process the trademark smoothly must be filed through professionals. But sometime, due to specific reasons, may come across this stage. It is easy to submit the reply for the formalities check fail by clearing the issues raised by the department.