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There are several resources online that will
tell you how to register a trademark in India, with a neatly drawn flow chart
for clarity and some websites that promise trademark registration in a day or even faster. What won’t be mentioned is
the time that it will take you from one step to another on that flow chart and
the constant tussle you have to face with the trademark office.
At the present performance of the trademark office
it takes approximately 15 to 18 months for a trademark application to be
examined and an examination report to be issued, a closer look reveals that
there is no specific order in which a trademark application is taken for
examination though there are several notices issued by the trademark office
reiterating that the applications should be taken in the order of filing.
Additionally there is absolutely no sign of accountability on the work of the
trademark officials albeit the frequent transfers and sacking of trademark
officials have a major impact on the morale of the officials which among other
reasons causes delays and cannot be overlooked.
Other than your regular follow up letters and
your persistent visits to the trademark office and requesting an update on your
trademark applications, in the recent past there is a Good Samaritan who will
come to your rescue- The Right to Information Act of 2005. In this post, I
intend on examining the scope of an application seeking information under the
Right to Information Act 2005, (RTI) in trying to gain information on a given
trademark application and its impact on the prosecution of the trademark
application.
The
right to information has been interpreted as a fundamental right under Article
19(1) of the Indian Constitution. Article 19 (1) says that every citizen has
freedom of speech and expression. As early as in 1976, the Supreme Court of
India held in the case of Raj Narain vs. State of UP India
For
the first time in the history of independent India
How effective is the RTI for pending trademark applications? In
other words why is it that the trademark office officials end up doing your
work which they were not doing earlier?
Under normal circumstances, a regular
follow up letter will not be acknowledged, let alone reach the respective
officer in charge of the files. However under the RTI it is mandatory that the trademark
officials respond in 30 days. If they don’t do that, their salary could be
deducted. I have listed a few sample
questions that you can ask in your RTI application that is likely to wake the
officials up. Now, it is not easy to answer these questions.
The first question is – please provide
the daily progress made on trademark application no 123456?
You know that no progress has been made
on the trademark application but the trademark officials cannot write that they
have not acted for so many months. That would be admission of guilt on paper.
The next question is – please provide
the names and designations of the officers who were supposed to take action on
my trademark application?
If the trademark office provides names
and designations of the officials, their responsibility gets fixed. No officer
wants to be held responsible, let alone have it in writing. So, the moment one
files such an application, his/her pending work is done and the official sends
a response stating that the work is already completed even before the
application was filed.
The RTI application however has its own
limitations, and the responses that one receives may often leave you puzzled as
to whether to laugh at or curse the ingenuity of the trademark officials in avoiding answering questions and shows that the officer merely wanted respond
within the stipulated limit of 30 days. The answer that you get through an RTI
application, in all probability will state that the office is understaffed and
the application is still being processed. And while that doesn’t achieve much
on its own, if you follow it up with another RTI application in a month of two,
the officials have to keep pulling out the file or asking the responsible
person to do so.
There have been occasions when RTI
applications have worked brilliantly. For instance an application to record an assignment
of a trademark was pending for over a period of two years, and after sending
two RTI’s within a span of two months despite getting vague answers, the
recordal finally did see the light of day. Similarly RTI’s on amendment
applications, opposition matters and most issues one encounters with the
trademark office have slowly yielded results.
The bottom line therefore would be that the
RTI Act is a very effective weapon in your armory. It works on the principle of
pestering the Registry into doing something.
RTI – anyone?
Image source: here
