WHAT IS FORMALITY CHECK FAIL IN TRADEMARK REGISTRATION PROCESS?
The application has to comply with respect to all the formalities, Nice Classification of goods and services, descriptiveness, distinctiveness and clarity etc.
Publication in trademark journal–if the trademark application is accepted by the trademark Examiner, then the application details will be posted online including the mark, class name, goods/services, date of application, name of the applicant with address, information about Proposed to be Used or priority claim, and the name of the Trademark Registration Jurisdiction in India where the application has been filed.
Registration – After the publication of the mark in trademark journal and if no opposition was filed within 4 months from the date of publication of the mark in the trademark journal, the issuance of trademark registration certificate will send to Applicant or to the Trademark Agent/Trademark Attorney via email.
If the reply to Formality Check Fail is not filed within the prescribed period, then trademark application gets rejected/ abandoned. Hence, the trademark applicant should to check the status of the trademark application at the regular interval.
This Article is describing the Trademark Application status of "Formality Check Fail".
What do you mean by "Formality Check Fail"?
The Trademark Application status "Formality Check Fail" means the Registrar will examine the Application at the preliminary level. Here the Registrar will check the basic information and supporting documents deposited with the Trademark application with the Indian Trade Marks Registry offices online or offline.
Reasons for "Formality Check Fail" of Trademark Application: –
While making a Trademark application one has to select the category under which the application is to be filed. The categories are divided into four parts which are;
1. Individual/Sole Proprietor
2. Startup
3. Small Enterprise
4. Others
Hence, if the proper category is not selected then the Trademark application status falls under the "Formality Check Fail".
1. Incorrect Name of Applicant
2. Incorrect Address of Applicant
3. Incorrect Country of Applicant
4. Incorrect Jurisdiction of Applicant
5. Incorrect Email Address of Applicant
6. Incorrect Nature of Applicant
Example: if Applicant is Indian Private Limited Company, then the Nature of Applicant will be Body Incorporate & Legal Status of Applicant will be an Indian private limited company
1. Incorrect Legal Status of Applicant
2. Incorrect Category of Mark
3. Incorrect Trade Mark
4. Incorrect Image Description
5. Incorrect Image Description
If mark in a language other than Hindi or English, example. Bengali
1. Then the Applicant have to provide
2. Transliteration of the mark in roman script: -
3. Translation of the mark in English: -
If the Applicant fails to comply the above formalities, then the Trademark application status falls under the "Formality Check Fail".
Incorrect class of goods or service
The Indian Trade Mark has divided the goods and services into 1 to 45 classes. The correct class needs to be selected at the time of filing a Trademark Application.
Example: if Applicant is Indian Private Limited Company manufacturing or dealing in pharmaceutical goods then Class should be 5 & Description of goods should be pharmaceutical preparations. if the Class is correct but description of goods is not as per the Nice Classification (NCL) or vice versa, established by the Nice Agreement (1957), is an international classification of goods and services then the Trademark application status falls under the "Formality Check Fail".
Improper Uploaded Documents:
The timeline of Trademark Registration Process can further stretch if all the required documents are not submitted/Uploaded Documents. This includes putting up an application with important documents like such as Power of Attorney, user affidavit" & proofs in support of claim for User Date, supporting documents for claiming a rebate on application fees i.e., start-up or Msme Certificate, etc.
It might happen the Uploading Documents are corrupted/not proper and the Examiner is unable to open/ view/ unreadable to them. In such cases the examiner marks the Trademark Application status as "Formality Check Fail" and asks to submit the documents again.
Improper Information:
All the required information in the application must be filled properly as required. For example, the translation and transliteration must be provided if the brand name is in a language other than English or Hindi. The name, address and other details of the applicant must be as per the Power of Attorney; the user date must be mentioned properly, It is recommended that mark images have a length of no less than 250 pixels and no more than 944 pixels, and a width of no less than 250 pixels and no more than 944 pixels. Mark images should have little or no white space appearing around the design of the mark., etc.
Trade Mark and logo are different:
If the logo and the provided Trade Mark are different from each other and the words mentioned in the logo do not match with the Trade Mark, then the Examiner marks the status as "Formality Check Fail". Hence, both the logo and the brand/ Trade Mark must correlate with each other.
Actions to take
The ministry will issue a notice for "Formality Check Fail" along with reasons issuing the same. The applicant has to file the "Formality Check Fail" reply within 30 days from the date of receipt of the notice. Ministry will mark the application as abandoned upon not receiving the response within the specified period (within 30 days from the date of receipt of the notice).
If the ministry is satisfied with the reply, then it will process the application for the next stage. If the reply is not satisfactory then ministry may again mark the status as "Formality Check Fail".
Conclusion
One can avoid this stage by filling the correct & proper information in Trademark Application. To process smoothly trademark must be filed through Trade Mark Agent or Attorney. But sometime, due to technical reasons, one may come across this stage. It is simple to file the reply for the "Formality Check Fail" by clearing the issues raised by the ministry.
Frequently Asked Questions About Formality Check Failures in Trademark Registration
Registering a trademark is an important step in protecting your brand identity. However, the trademark registration process can be complex and confusing, and it's not uncommon for applicants to encounter issues along the way. One such issue is a formality check failure. In this article, we'll answer some frequently asked questions about formality check failures in trademark registration.
Q: What is a formality check?
A: A formality check is a review of the trademark application to ensure that it meets all the necessary requirements. This includes verifying that the application is complete, that the fees have been paid, and that the required documents have been submitted.
Q: What is a formality check failure?
A: A formality check failure occurs when the trademark application does not meet one or more of the necessary requirements. This can include missing or incomplete information, incorrect filing fees, or failure to submit required documents.
Q: What happens when a formality check fails?
A: If a formality check fails, the Trademarks Registry will issue a formal notice of objection. The applicant will be given a specified time frame to address the objection and provide the missing or corrected information. Failure to respond within the specified time frame can result in the application being abandoned.
Q: How can I avoid a formality check failure?
A: To avoid a formality check failure, it's important to carefully review and double-check your trademark application before submitting it. Make sure that all required information is included and that any supporting documents are properly prepared and submitted. It's also a good idea to work with a trademark agent or attorney who can guide you through the application process and ensure that your application meets all the necessary requirements.
Q: Can I appeal a formality check failure?
A: Yes, it is possible to appeal a formality check failure. If you believe that the objection is unfounded or that you have provided the necessary information, you can file an appeal with the Trademarks Registry. However, it's important to note that the appeal process can be lengthy and expensive, so it's best to avoid a formality check failure in the first place.
In conclusion, a formality check failure can be a frustrating setback in the trademark registration process. However, by carefully reviewing your application and working with a trademark agent or attorney, you can avoid common mistakes and increase your chances of a successful registration. If you do encounter a formality check failure, it's important to address the objection promptly and provide the necessary information to avoid abandonment of your application.
How a Trademark Agent or Attorney Can Help You Navigate Formality Check Failures in Trademark Registration
Registering a trademark is an important step in protecting your brand identity, but the trademark registration process can be complex and overwhelming. One common hurdle that applicants face is a formality check failure. This occurs when the trademark application does not meet all of the necessary requirements, such as missing information, incorrect filing fees, or failure to submit required documents. In this article, we'll explore how a trademark agent or attorney can guide you through the formalities check process and help you avoid common pitfalls.
1. Expertise: A trademark agent or attorney has extensive knowledge and experience in the trademark registration process. They can guide you through the process and advise you on the necessary steps to take to avoid formality check failures.
2. A thorough review of your application: Before submitting your application, a trademark agent or attorney will carefully review it to ensure that it is complete and meets all the necessary requirements. This can include verifying that the application is properly filled out, that the filing fees have been paid, and that all required documents have been submitted.
3. Assistance with filing: If any issues are identified during the review process, a trademark agent or attorney can assist you with correcting the issues and ensuring that the application is properly filed.
4. Prompt response to formal notices of objection: In the event of a formality check failure, the Trademarks Registry will issue a formal notice of objection. A trademark agent or attorney can help you respond to the objection promptly and provide the necessary information to avoid abandonment of your application.
5. Legal advice: A trademark agent or attorney can offer legal advice on trademark infringement, licensing, and other related issues. They can help you protect your trademark rights and take legal action if necessary.
In conclusion, a formality check failure can be a frustrating and time-consuming setback in the trademark registration process. However, by working with a trademark agent or attorney, you can avoid common mistakes and increase your chances of a successful registration. They can guide you through the process, review and file your application, and respond promptly to any formal notices of objection. Don't let formality check failures stand in the way of protecting your brand identity - consult with a trademark agent or attorney today.
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