Section 12 Honest Concurrent Use Affidavit Draft

Evidence and use affidavits

Set out sworn, dated facts supporting a request to register a mark despite a cited earlier mark on the ground of honest concurrent use.

Legal references checked: 14 October 2026

What the Registrar weighs under Section 12

Section 11(1) applies "save as provided in section 12". Section 12 allows the Registrar, in a case of honest concurrent use or other special circumstances that in the Registrar's opinion make it proper, to permit registration of identical or similar marks by more than one proprietor for the same or similar goods or services, whether or not either mark is already registered, subject to any conditions and limitations the Registrar thinks fit. Section 12 sets no minimum period of use and lists no factors. The affidavit should therefore give dated, verifiable facts on adoption, when the applicant learned of the cited mark, the length, extent and territory of use, the overlap with the cited mark and any confusion.

Filing period and procedure

No separate period applies to the affidavit itself. File it with the examination-report reply within the Rule 33(4) period (one month from receipt) or before the show-cause hearing; in an opposition, use the applicant's Rule 46 evidence stage (two months from receipt of the opponent's evidence or intimation).

Before you prepare the draft

Facts to confirm

Date and reason for adoption, and any search made before adoption
Date and manner in which the applicant first learned of the cited mark
Period, continuity, territory and channels of the applicant's use
Any instance of actual confusion, complaint, correspondence or dispute
Deponent's capacity and access to records

Evidence to keep ready

Dated mark-bearing invoices, labels and advertisements across the claimed period
Year-wise sales and promotion figures with their source records
Adoption records, such as design files, business registrations or search reports
Correspondence with the cited proprietor, if any
Indexed exhibits showing each document's date and what it proves

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 [mark]
[In an opposition, add: Opposition (number) by (opponent)]
Applicant: [legal name and address]
Cited mark(s): [number(s), mark(s), proprietor(s)]
Affidavit in support of registration under Section 12 (honest concurrent use)

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] for [exact goods/services] [claiming use from (date) / on a proposed-use basis for (goods/services)]. The examination report dated [date] cites [mark(s) and number(s)] under Section 11(1). [In an opposition: The notice of opposition (number) relies on (mark(s) and number(s)).] This affidavit describes the applicant's use of its mark alongside the cited mark(s).

3. The applicant adopted [exact mark] on [date] because [actual reason, such as a founder's name, a place or a coined word]. Before adoption, the applicant [conducted (search) on (date) / did not conduct a search]. The applicant first became aware of the cited mark on [date] through [how]. [If awareness came before adoption, explain the facts said to show honest adoption.]

4. The applicant has used the mark from [date] to [date] for [goods/services] in [territories], through [channels]. Any interruption was [period and reason]. Exhibits [references] are dated mark-bearing [invoices, labels, packaging or advertisements] covering that period.

6. From [identified sources], the applicant understands that the cited mark has been used for [goods/services] in [territory/channels] since [date, if known]. The overlap with the applicant's use is [facts]. No statement is made about the other proprietor's business beyond what these sources show.

7. After [the inquiries actually made, e.g. review of complaint records, sales staff and distributor feedback], the applicant is aware of [no instance / the following instances] of customers mistaking one business for the other. [Describe any instance and how it was resolved.]

8. In the market, the applicant's mark is presented as [get-up, colours, house mark], sold at [price range] through [channels] to [purchasers].

9. [OPTIONAL—omit unless supported:] The parties' dealings are [none / correspondence dated (date), Exhibit (reference)]. [No legal proceedings exist between them / The following proceedings are pending: (details)].

10. Under the mark, the applicant has built [specific goodwill facts]. Refusal would [specific consequence]. [OPTIONAL—omit unless agreed:] The applicant is willing to accept the following condition or limitation under Section 12: [restriction of goods/services, territory or presentation].

11. The exhibits are [originals/true copies from identified sources] and are indexed with their dates and what each shows. Documents dated after the application date are identified by their actual dates.

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

The Act sets no minimum period of concurrent use, and Section 12 is discretionary: the Registrar may refuse or impose conditions and limitations. Section 12 does not answer a Section 9 objection, and acceptance does not prevent the earlier proprietor from opposing after advertisement under Section 21.

State honestly when the applicant learned of the cited mark, and do not claim an absence of confusion unless inquiries were actually made. 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: Section 12; Section 11(1); Section 18(4); Section 21 (opposition after advertisement)
Trade Marks Rules, 2017: Rule 33; Rule 46 where relied upon in an opposition; Rule 120 (form of affidavits)

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

Section 12: honest concurrent use affidavit