Forms & Procedure
Trademark User Affidavit
Ahmedabad, Gujarat
If your trademark application claims that you have been using the mark before the date of filing, you must file a user affidavit. It is not optional and it is not something you wait for the examiner to ask about.
Rule 25 of the Trade Marks Rules, 2017 requires an application to state the period of use and the person who used it, unless the mark is proposed to be used. Where use prior to the date of application is claimed, the applicant shall file an affidavit testifying to such use, along with supporting documents.
What changed in 2017
This is the point many older guides still get wrong.
Under the Trade Marks Rules, 2002 the affidavit was produced only if the examiner asked for it. A use claim could sit on the file unsupported until someone queried it. The 2017 Rules made the affidavit mandatory at filing wherever prior use is claimed.
The practical consequence is that a use claim without an affidavit is now a defect in the application, not merely a loose end. It surfaces at the formalities check or in the examination report, and it has to be cured.
Why the claim matters so much
A date of first use is not decoration. It carries real consequences in both directions.
A genuine, well-evidenced use claim is valuable. It is the route out of a Section 9 objection, because the proviso to Section 9(1) allows a descriptive or non-distinctive mark to be registered where it has acquired a distinctive character through use before the date of application. It also strengthens your position against a later-filed conflicting mark.
An unsupported or exaggerated claim is dangerous. It can be challenged in opposition or rectification, and a use date you cannot prove undermines the credibility of everything else you assert. Where the evidence is thin, claiming “proposed to be used” is the honest and usually safer option. You can always build the evidence and rely on it later.
What goes into the affidavit
There is no single prescribed form, but a usable affidavit covers the same ground every time.
Who is swearing it, in what capacity, and their authority to do so where the applicant is a company or firm.
The mark itself, the application number if already allotted, and the classes and specific goods or services concerned.
The date of first use, stated precisely, and confirmation that use has been continuous since then if that is the case.
The nature of the use — how the mark appears on goods, packaging, signage, invoices or in the provision of services.
Who has used it: the applicant, or a predecessor in business, or a permitted user. If use has been by a related entity, say so, because use by a permitted user is deemed use by the proprietor under Section 48(2) but unexplained third-party use invites questions.
A list of the documents annexed.
It is sworn before a notary or other authorised person. As an affidavit it attracts stamp duty under the relevant State Stamp Act, which is a state matter rather than something set by the Trade Marks Rules.
The evidence that actually carries weight
The affidavit is the vehicle. The annexures are what persuade.
Dated invoices bearing the mark are the strongest single item, because they are contemporaneous, commercial and hard to construct after the fact. A spread of invoices across the claimed period is far better than a handful from one month.
Advertisements and marketing material carrying a visible date, along with the bills for placing them.
Packaging, labels and signage showing the mark as actually used.
Dated digital evidence — website archive captures, dated social posts, app store listings — where it can be tied to a verifiable date rather than merely asserted.
Audited turnover figures for the goods or services under the mark, broken down by year.
Three tests apply to all of it. Does it predate the claimed date of first use? Does it show this mark, in the form applied for? Does it relate to these goods or services, in the class claimed? Evidence that fails any of the three does more harm than good, because it signals that stronger material does not exist.
Common mistakes
Claiming a use date that reflects when the business started rather than when this particular mark was first used on these particular goods. They are often different dates.
Annexing undated material. A photograph of packaging with no date proves the packaging exists, not when it existed.
Evidence showing a different version of the mark — an earlier logo, a different spelling, the name inside a longer phrase.
Claiming prior use across every class in a multi-class application when the mark was genuinely used in only one of them. The claim should be class-specific and honest.
Where this fits
If you are answering an objection that your mark is descriptive or lacks distinctiveness, the affidavit and its annexures are the core of your reply — see replying to a Section 9 objection. If the objection cites an earlier conflicting mark instead, prior use is relevant but the argument is different: see replying to a Section 11 objection.