As discussed in my previous post, the claimant of well knownness of a trademark is required to prove the popularity of the mark among relevant public by submitting cogent, clear and convincing documentary proof. In this post, we will be discussing the list of documents that the courts or the Trademark Office considers as valid proof for determining the well knownness of a trademark.
Although a hard and fast rule cannot be drawn with respect to the acceptable evidences before a court of law, the following list is drawn from interpretation of various judgements and practices of the Trademark Office:
a) Certified Copies of Trademark Registration Certificates: Although trademark registration in India is not a requisite factor for determining the well knownness of a trademark, registration certificates of other jurisdictions and their effective enforcement are considered relevant factors. Section 137 of the Trade Marks Act, 1999 can be interpreted to mean that only certified copies of registration certificates would be considered as acceptable proof of evidence. Attorneys usually submit the status pages of online databases to show that the mark is registered. However, copies of such status pages cannot be considered as acceptable evidence as the online databases maintained by all Trademark Offices specifically disclaim the use of status pages for legal purposes.