Trademark Formality Check Fail
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What is Formality Check Fail ?
When you apply for a trademark registration in India, your application undergoes several stages before it gets approved. One of the earliest and most crucial steps is the Formality Check conducted by the Indian Trademark Office.
The Formality Check is an initial review conducted by the Trademark Registry to ensure that your application meets the basic filing requirements under the Trade Marks Act, 1999 and Trade Marks Rules, 2017.
This stage verifies:
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Whether all mandatory fields in the application are correctly filled.
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If the prescribed fee has been paid in full.
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Whether the documents submitted are complete and valid.
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If the application complies with classification rules and legal formats.
If any of these requirements are not met, the status will be updated to “Formality Check Fail” in the IP India public trademark database.
If all the information filed in the trademark application is acceptable, then the department will move the trademark application for examination and mark it as “Formality Check Pass”. If the department wants to raise any discrepancy regarding the application filed then they will issue a keep pending notice and designate the trademark application as “Formality Check Fail”.
If your application fails at this stage, it will be marked as “Formality Check Fail” and immediate action will be required to avoid rejection.
At My Trademark Guide, we help you resolve trademark formality check failures quickly and efficiently so your application can move forward without delays.
Common Reasons for Trademark Formality Check Fail in India
A trademark application may be marked as a formality check fail for various reasons. The examiner may issue a keep pending notice in the following cases:
- Incorrect class: If the applicant has chosen the wrong class and such selected class does not contain the goods as mentioned in the application, then the trademark department will issue a keep pending notice.
- Incorrect goods description: If the trademark class is correct but the goods or service description mentioned in the class does not match the class description, then the examiner may mark the trademark as formality check fail.
- Word or Device description is incorrect: When the word or image description mentioned by the applicant is objectionable, the department may issue a notice to the applicant to correct it.
- Non-payment of fees: Sometimes the applicant may file the trademark application in the wrong category and pay less fees. In such cases, the trademark department may issue a notice requiring the applicant to pay the deficit fees.
- Requirement of evidence: When the applicant has claimed a prior date of use in the trademark application and has not attached the supporting evidence, the trademark department may demand evidence by issuing the keep pending notice.
- Documents Requirement: The trademark department may issue a keep pending notice when they need additional documents from the applicant to verify the trademark application.
How to Resolve a Trademark Formality Check Fail ?
When the keep pending notice is issued and the application is marked as “Formality Check Fail”, the Trademark department sends the notice to the applicant and their agent via email. In order to reply to the notice, the below-mentioned process shall be followed:
- Understand the Objection: The first step is to carefully read the notice to analyze the objection raised. Try to understand why the examiner issued the notice.
- Drafting the Reply: Once you have a good understanding of why your trademark application is kept on hold, draft your reply carefully. Consider the following points:
- Keep the reply brief and focused on the query the examiner has raised.
- Address each query separately.
- Refer to relevant case laws to support your case.
- Provide evidence of use if you’re already using the mark.
- Request the Examiner not to reject the application without providing a chance for a hearing.
- Submit the reply: After drafting the reply to the notice, submit it to the trademark department. You can do this either online or offline. Sometimes, the department may also ask to alter the trademark application to proceed it for examination. In such cases file TM-M for required alterations.
- Review of Reply: The Examiner reviews the submitted reply. If satisfied, they may move the application for examination.
- Further Action: If the Examiner remains unsatisfied and seeks more clarification, he may issue another notice. If the applicant or their agent is unable to submit a satisfactory reply, then the examiner may refuse the application.
Responding to keep pending notice without technical knowledge can be challenging and may reduce the chances of acceptance. My Trademark Guide makes filing replies to notice easier. Contact us today to simplify the process and increase your chances of acceptance.
Documents Required To Reply Formality Check Fail
For Replying to the trademark keep pending notice, we require the following from you:
Authorization Letter
Our team will share the format of the authorization letter. This authorization letter is necessary so we can file the reply on your behalf.
Proofs of Use
If you are already using the mark, we will require proofs of use of the mark like invoices, advertisement expenses, turnover proofs, etc.
My Trademark Guide is your reliable partner in the process of trademark registration. We provide expert guidance and support to make the journey hassle-free. You can trust us to help you compile all the required documents and navigate through the complexities of the registration process. Start securing your brand identity today by choosing us!
How To Submit Reply To Formality Check Fail ?
Online Submission:
- Log in to the E-filing portal at https://ipindiaonline.gov.in/trademarkefiling/user/frmLoginNew.aspx
- Navigate to the Miscellaneous Reply section.
- Submit the reply to formality check fail through the online portal.
Email Submission:
- Send the reply to the Trademark department at parm.tmr@nic.in.
- Ensure that the reply is attached and relevant details are included in the email.
Physical Submission:
- Submit a physical copy of the reply directly to the Trademark department.
Choose the method that is most convenient for you or your agent. Whether online through the portal, via email, or physically submitting, make sure to follow the specified guidelines for each submission method.
A Formality Check Fail is not the end of your trademark journey. With the right guidance, you can fix the issue and proceed with your registration without losing your rights.
My Trademark Guide specializes in trademark formalities correction and ensures your brand gets the legal protection it deserves.
How To Avoid Keep Pending Notice ?
Pay attention to the following points while filing your trademark application to avoid the keep pending notice and initiation of formality check fail status:
- Make sure that the trademark class and description matches with each other. Initial research while drafting the trademark description is very important to get the complete benefits of trademark registration.
- Attention shall be paid while entering the word and image description for your trademark application. Vague or incorrect description may result in objection from department.
- It is important to choose the correct category of the applicant while applying for trademark registration. Choosing the correct category not only results in avoiding the demand for the payment of deficit fees but also avoid any unnecessary delays.
- When the applicant is already using the mark and wants to claim the prior date of usage while applying for trademark registration, it is always a good idea to attach the proofs of use at the time of application filing.
- While filing the trademark application make sure that you have attached a legible copy of all the required documents. If applying through an agent, the authorization must be attached. Different situations may require different supportive documents to be annexed to the application.
Why You Shouldn’t Ignore a Trademark Formality Check Fail ?
A Formality Check Fail is an early red flag in the trademark registration process. Many applicants ignore it, assuming it’s a minor issue, but in reality, failing to address it promptly can have serious legal and commercial consequences for your brand.
Here’s what can happen if you don’t act immediately:
1. Loss of Filing Date: In trademark law, your filing date is your priority date. It establishes your legal claim over the trademark ahead of others. If the formality check fail is not rectified within the prescribed time, your application will be treated as abandoned, and you will lose your filing date. This means:
- You lose the legal advantage over competitors who file after you.
- You may have to start the registration process from scratch.
- Your brand could become vulnerable to misuse or registration by others.
2. Delay in Trademark Registration: Until the issues flagged in the formality check are resolved, your application cannot proceed to the examination stage. This causes unnecessary delays, sometimes extending your registration timeline by several months. The longer your application is stalled, the longer you remain without full legal protection against infringement.
3. Additional Costs & Effort: If the deadline to fix the errors passes, you may have no option but to file a fresh application. This means paying the filing fee again, preparing new documents, and repeating the entire process. This not only increases your costs but also wastes valuable time and resources.
4. Loss of Priority Rights to Competitors: If a competitor files for the same or similar trademark while your application is stuck in a failed status, they might obtain registration before you. Once their trademark is registered, you may face:
- Legal hurdles in getting your mark approved.
- The need to defend your rights through expensive litigation.
- The possibility of rebranding, leading to financial and reputational loss.
Why Choose Us
In the fast-paced world of Indian business, it’s vital to protect your brand’s identity. This means securing a trademark, a unique symbol that distinguishes your business. However, the process of trademark registration can be complex. Many businesses encounter queries at the initial stages, where a well-crafted response is necessary to defend their brand’s reputation.
At My Trademark Guide, we recognize the importance of safeguarding your brand identity in today’s competitive business environment. As a trusted provider of trademark services, we are dedicated to offering comprehensive and hassle-free solutions to safeguard your intellectual property. Here’s why choosing us is the wise and strategic choice for your trademark service needs in India:
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Frequently Asked Questions (FAQs)
If the department wants to raise any discrepancy regarding the trademark application filed then they will issue a keep pending notice.
If the department wants to raise any discrepancy regarding the application filed then they will issue a keep pending notice and designate the trademark application as “Formality Check Fail”.
A trademark may be marked as formality check fail for many reasons like incorrect information, wrong class, wrong product or service description etc.
When a notice is issued, it is important to carefully read and reply to each query raised.
The reply to keep pending notice is required to be filed within 30 days.
In order to avoid keep pending notice it is important to pay attention to various points while filing the trademark application like entering the right class and description, submitting correct documentation etc.
The applicant may reply to the keep pending notice himself but in order to make sure that the queries are addressed correctly it is recommended to hire a professional for the same.
A formality check failure typically relates to administrative or procedural issues with the application, such as incomplete forms or missing documentation. In contrast, a trademark objection occurs when the trademark office determines that the trademark does not meet the substantive requirements for registration, such as lacking distinctiveness or being too similar to existing trademarks.