Trademark Acquired Distinctiveness Affidavit Draft

Evidence and use affidavits

Prove with dated records that the mark identified the applicant's goods or services before the application date.

Legal references checked: 14 October 2026

What acquired distinctiveness must show

The proviso to Section 9(1) states that a trade mark shall not be refused registration if, before the date of application, it has acquired a distinctive character as a result of the use made of it, or is a well-known trade mark. The affidavit must therefore show use before the application date, of the mark as applied for, for the goods or services claimed, to an extent that customers recognise it as identifying the applicant. Turnover alone does not show how the public perceives the mark; connect figures to mark-bearing records, territory and promotion. The proviso does not apply to Section 9(2) objections.

Filing period and procedure

File it with the reply to the Section 9(1) objection within the Rule 33(4) period (one month from receipt); under Rule 33(2) the Registrar considers the application together with any evidence of use or of distinctiveness. If it is filed later, file it before the hearing and cite it in the written submissions.

Before you prepare the draft

Facts to confirm

Application date and the use date claimed in the application
Exact form in which the mark has been used, compared with the mark as filed
Goods/services actually sold under the mark before filing
Territories, channels and customer base before filing
Deponent's capacity and access to records

Evidence to keep ready

Year-wise pre-filing sales and promotion figures with their source (accounts or certificate)
Dated mark-bearing invoices, packaging and advertisements across years and territories
Dated media coverage, catalogues, trade-fair or online records
Trade or customer declarations, or a survey with its method disclosed, only if genuinely obtained

Editable draft framework

Replace every [placeholder] and delete optional paragraphs that your facts do not support. You can edit the text below before copying it, or select it and use Ctrl+C or Command+C.

Draft text

Before the Registrar of Trade Marks
Application [number], Class [class], mark [exact mark]
Applicant: [legal name and address]
Affidavit of use and acquired distinctiveness under the proviso to Section 9(1)

I, [full name], aged [age], of [address], [capacity], solemnly affirm:

1. I am [proprietor/partner/director/authorised representative] of the applicant, authorised by [details]. I know the facts stated from [personal involvement and identified business records]. Where a statement rests on records, the source is stated.

2. The application was filed on [date] [claiming use from (date)]. The examination report dated [date] raises an objection under Section 9(1)([a/b/c]). The relevant date for this affidavit is the application date; any use after it is identified separately and is not relied upon to show distinctiveness before filing.

3. The mark has been used [exactly as applied for / with these differences: (describe)]. It appears on [packaging, signage, invoices, website or other material] as the name of the applicant's goods/services and not as a description of them. Where it is used with [house mark or logo], [explain how the applied-for mark is presented and recognised on its own]. Exhibits [references] show this.

4. The applicant has used the mark continuously since [date] for [goods/services]. Any interruption was [period and reason]. The mark has not been used before filing for [goods/services in the specification, if any], and the applicant [proposes a restriction / addresses them as follows: (explanation)].

6. Before filing, goods/services under the mark were supplied in [states/cities] through [channels] to about [number and type of customers], as shown by Exhibits [references].

7. The mark was promoted through [media, trade fairs, online channels] during [dates]. Exhibits [references] are dated copies of that material.

8. [OPTIONAL—omit unless supported:] Recognition of the mark as identifying the applicant is shown by [unsolicited media coverage, awards, trade or customer declarations filed as separate affidavits, or a survey whose method is described in Exhibit (reference)].

9. [OPTIONAL—omit unless supported:] The applicant has acted against [imitations, with details and outcomes]. Third-party use of the same or similar words known to the applicant is [facts], and its effect is [explanation].

10. On the facts above, before [application date], customers and the trade in [territory] associated [mark] with the applicant's [goods/services]. The legal assessment of distinctiveness is for the Registrar.

11. The exhibits are [originals/true copies from identified sources] and are indexed with their dates and what each shows.

Verification: Paragraphs [numbers] are true to my knowledge; paragraphs [numbers] are based on [identified records/information] believed true. Verified at [place] on [date].
[Deponent’s signature; lawful oath/attestation details]
Filed by: [name and address of filer]
Filed on behalf of: [applicant legal name]

Check before filing

Only use before the application date counts under the Section 9(1) proviso; label later documents with their actual dates. Use only inside a composite logo or alongside a house mark may not show that the applied-for element is recognised on its own, and a certificate of figures does not by itself prove the sales were under the mark.

The Registrar may accept subject to conditions or limitations, which can include a limited area of use (Sections 18(4) and 2(1)(l)). Section 32 concerns distinctiveness acquired after registration and does not help a pending application. Rule 120 requires the affidavit to be sworn before an authorised person and duly stamped under the law in force.

This is an original drafting framework, not an official statutory form or an assurance of acceptance. Match the notice, application, evidence and service dates; use the prescribed form and complete the applicable filing, service and execution requirements.

Relevant law and official sources

Trade Marks Act, 1999: proviso to Section 9(1); Section 18(4); Section 2(1)(l) (limitations); Section 32 for contrast
Trade Marks Rules, 2017: Rule 33(2) and (4); Rule 25(2) where use before filing is claimed; Rule 120 (form of affidavits)

Trade Marks Act, 1999 — India Code
Trade Marks Rules, 2017 — IP India

Affidavit of acquired distinctiveness for a Section 9(1) objection