DRAFTING AN AFFIDAVIT UNDER RULES 45/46 AND 47 OF TRADE MARKS RULES, 2002

The Mode of filing evidence on affidavit is provided under Section 45 of The Trade Marks Act, 1999, however it is not mandatory or incumbent on the part of the registrar to accept the same, he may allow the same and direct to produce oral evidence also.?This Section clearly denotes that allowing or disallowing the evidence on affidavit or to product an oral evidence is the discretionary power of the registrar.?As per Rule 45 of the Trade Mark Rules evidence on affidavit needs to be field within two months from the date of receipt of counter statement, which he wants to adduce, to the registrar or the Registrar may be informed in writing about not intending to file evidence on affidavit.?If it is filed then the copies thereof shall be delivered to the applicant including annexures thereof and shall inform the registrar about such delivery.

?????????The said Evidence on affidavit must be duly stamped.?Further, it shall contain and clearly state as to for which matter the same is filed and it is related to.?It shall be in the form of First person divided into paragraphs and consecutively numbered having confined to particular subject.?It shall further state about the description and the true place of above of the person making the same and shall bear the name and address of the person filing the same as well as for whom the same is filed, if authorised agent is appointed.?The evidence on affidavit must be filed with the office within whose jurisdiction the said matter is pending.?

?????????It is pertinent to note here that if the opponent does not take any action as contemplated under Rule 45(1) of the Trade Marks Rule, 2017, then it is presumed that he has abandoned the opposition and do not want to proceed with the same.

?????????Further, as per Rule 47 of the Trade Marks Rule, 2017, after filing an affidavit of evidence by the applicant, the opponent shall within a period of 1 month, may with the leave of the Registrar tender an evidence by affidavit in reply and shall deliver to the applicant copies of the same including exhibits thereof, if any, and shall intimate the registrar in writing of such delivery.?It is important to note here that within the aforesaid time, the opponent must either file evidence or may rely on the facts already stated in?the notice of opposition, in which case he must intimate the same in writing to the Registrar and to the applicant also.

?????????In case the opponent neither files evidence?in support of opposition nor intimates as prescribed to the Registrar, he shall be deemed to have abandoned his opposition, in which case an order to that effect shall be communicated to the parties by the registrar.