Written byRahul Roy
Trademark Research Specialist
Overview of Rule 25 & Prior Use in India
Under Rule 25 of the Trade Marks Rules, 2017, any trademark applicant claiming prior commercial use of a brand before the filing date on Form TM-A must submit a formal User Affidavit executed on Non-Judicial Stamp Paper (typically â‚ą100), duly notarized, along with documentary evidence such as earliest dated tax invoices, CA turnover certificates, and packaging proofs. Establishing prior use provides unassailable seniority under Section 34 of the Trade Marks Act, 1999 over rival claimants.
India adheres firmly to the common-law principle of“First to Use”over “First to File”. Unlike pure registration-based jurisdictions where ownership belongs exclusively to whoever rushes to the registry counter first, Indian intellectual property jurisprudence prioritizes the entity that first adopted and continuously used the trademark in commercial trade.
Codified underSection 34 of the Trade Marks Act, 1999 (Saving for vested rights), a registered trademark proprietor cannot restrain or interfere with the continuous prior use of an identical or similar mark by a senior user. However, claiming this legal shield during thetrademark registration processis not a matter of mere verbal declaration; it demands strict statutory compliance through a swornUser Affidavitunder Rule 25(1).
If an applicant claims a prior use date without furnishing the mandatory affidavit and exhibits, the Trade Marks Registry will immediately place the application under a“Formality Check Fail”status or issue severe examination objections under Section 9 and Section 11, jeopardizing months of procedural progress.
What is a Trademark User Affidavit?
ATrademark User Affidavitis an official legal instrument sworn by the proprietor, partner, or authorized director of the applicant business. It acts as sworn testimony under oath attesting to the precise historical facts surrounding the adoption, continuous commercial exploitation, geographic spread, sales volume, and promotional expenditure of the brand.
Rule 25(1) Statutory Mandate
Rule 25(1) of Trade Marks Rules, 2017 stipulates:“An application to register a trade mark shall specify the user date. In case the use of the trade mark is claimed before the date of application, the applicant shall file an affidavit testifying to such user with supporting documents.”
Section 34 Prior User Shield
Section 34 shields prior users from infringement lawsuits filed by subsequent registrants. The user affidavit establishes the foundational documentary paper trail necessary to prove continuous prior adoption in commercial litigation.
Overcoming Section 9 Inherent Weakness
Under the proviso to Section 9(1), weakly distinctive or suggestive marks can achieve registration if the user affidavit proves they have acquired secondary meaning and distinctive character through prolonged commercial use.
Honest Concurrent Use (Section 12)
If a similar mark is cited during examination under Section 11, a robust user affidavit enables counsel to argue honest concurrent adoption under Section 12. This allows co-existence on the Trade Marks Register.
Prior Use vs Proposed to be Used: Comparison
When drafting Form TM-A, applicants must choose between two distinct legal paths: claiming a specific historical user date or applying on a “Proposed to be used” basis. Compare the strategic and compliance implications:
| Feature / Parameter | Prior Use Claim (With Affidavit) | Proposed to be Used |
|---|---|---|
| Legal Basis | Rule 25(1) & Section 34 continuous use | Section 18(1) bona fide intention to use |
| Affidavit Requirement | Mandatory on Stamp Paper + Notary | Not Required |
| Documentary Evidence | Invoices, CA Certificate, Media Proofs | Zero documentation required |
| Seniority Date | Backdated to claimed date of first use | Application submission timestamp only |
| Section 9 Objection Defense | High (Proves acquired distinctiveness) | Low (Mark must be inherently distinct) |
| Opposition Defense (Section 11) | Stronger (Defeats younger registrants) | Vulnerable to earlier filers |
| Statutory Government Fee | â‚ą4,500 (Startup/MSME) / â‚ą9,000 | â‚ą4,500 (Startup/MSME) / â‚ą9,000 |
Statutory Structure of a User Affidavit
The Trade Marks Registry requires affidavits to follow a precise legal hierarchy. Submitting an informal letter or unsworn declaration will lead to summary rejection. A valid Rule 25 User Affidavit consists of eight essential statutory segments:
Cause Title & Registry Forum
Must specify the appropriate Trade Marks Registry jurisdiction (e.g., “BEFORE THE REGISTRAR OF TRADE MARKS, NEW DELHI / MUMBAI / CHENNAI / KOLKATA / AHMEDABAD”) along with the pending Application Number, Mark name, and registered Class.
Deponent Identification & Authority
The deponent must clearly state their full legal name, father's name, age, residential address, and capacity (e.g., Sole Proprietor, Managing Partner, or Director authorized via Board Resolution dated DD/MM/YYYY).
Specific Prior Use Date Declaration
The date of first adoption and commercial use must be declared in exact DD/MM/YYYY format. Vague declarations like “since 2018” or “for the last 5 years” violate Rule 25 and trigger formality objections.
Turnover & Sales Breakdown Table
An annual financial-year breakdown of revenue generated under the brand name from the inception date to the filing year, cross-referenced with an attached CA Turnover Certificate.
Advertising & Publicity Spends
Financial breakdown of marketing, digital advertising, print publicity, and exhibition expenditures deployed to popularize the brand in Indian commerce.
Schedule of Exhibited Documents (Annexures)
Explicit index of attached documentary proof: Annexure A (Earliest Invoices), Annexure B (CA Certificate), Annexure C (Domain WHOIS / Website Proofs), Annexure D (Product Labels), and Annexure E (Media Advertisements).
Verification & Truthfulness Clause
Statutory affirmation certifying that the contents of paragraphs 1 to 8 are true and correct to the personal knowledge and official records of the deponent, and nothing material has been concealed.
Notary Attestation & Official Seal
Execution signature of deponent accompanied by the official stamp, registration number, signature, and Notarial Seal of an authorized Notary Public or Oath Commissioner.
Sample Trademark User Affidavit Draft Format
Below is a standardized legal draft template for a Trademark User Affidavit in India under Rule 25 of Trade Marks Rules, 2017. This template can be adapted for Sole Proprietorships, Partnerships, LLPs, or Private Limited Companies:
TRADE MARKS REGISTRY, GOVERNMENT OF INDIA
Trade Mark Application No.: [APPLICATION NUMBER]
Word / Device Mark: “[BRAND NAME]”
In Class: [NICE CLASS NUMBER]
Applicant: [APPLICANT ENTITY NAME]
I,[Deponent Full Name], S/o[Father's Name], aged about[Age]years, residing at[Residential Address], do hereby solemnly affirm and state on oath as under:
1. That I am the[Director / Partner / Sole Proprietor]ofM/s [Applicant Entity Name]having its principal place of business at[Registered Office Address], and I am fully conversant with the facts and competent to depose this affidavit on behalf of the Applicant.
2. That the Applicant adopted the trademark“[BRAND NAME]”honestly and bona fide for[Detailed Description of Goods/Services]falling in Class[Class]on[DD/MM/YYYY].
3. That the Applicant has been continuously, extensively, and uninterruptedly using the said trade mark“[BRAND NAME]”in India commercially since[Exact Date of First Use: DD/MM/YYYY]up to the present date without any abandonment or interruption.
4. That in support of the claimed prior use since[DD/MM/YYYY], copies of the earliest tax invoices, purchase orders, and sales receipts bearing the mark are annexed herewith asANNEXURE-A (Colly).
5. That the annual commercial turnover figures generated by the Applicant under the said trade mark“[BRAND NAME]”in India are as follows:
Financial Year 2022-23: â‚ą [Turnover Amount in INR]
Financial Year 2023-24: â‚ą [Turnover Amount in INR]
Financial Year 2024-25: â‚ą [Turnover Amount in INR]
A copy of the CA Certified Sales Turnover Certificate is annexed as ANNEXURE-B.
6. That the Applicant has expended substantial capital towards advertising, digital marketing, website hosting, and publicizing the brand throughout India. Copies of marketing invoices and media clippings are annexed asANNEXURE-C.
7. That specimen product packaging, labels, promotional brochures, and domain WHOIS records displaying the mark are annexed herewith asANNEXURE-D.
8. That on account of long, continuous, and widespread use, the trade mark“[BRAND NAME]”has acquired distinctiveness and secondary meaning, identifying the goods/services exclusively with the Applicant.
Date: [DD/MM/YYYY]
DEPONENT
(Authorized Signatory)
I, the deponent abovenamed, do hereby verify that the contents of paragraphs 1 to 8 of this affidavit are true and correct to the best of my personal knowledge and derived from the official books of account of the Applicant. No part of it is false and nothing material has been concealed therefrom.
DEPONENT
Note: Ensure all annexed documents are marked clearly with corresponding exhibit letters (Annexure A, B, C, etc.) and carry the initial or signature of the deponent.
Stamp Paper Values & Notarization Rules
Under the Indian Stamp Act, 1899 and state-specific stamp schedules, an affidavit executed for quasi-judicial proceedings before the Trade Marks Registry must carry requisite stamp duty. The stamp duty varies across states:
| State / Union Territory | Recommended Stamp Value | Accepted Format | Legal Governing Stamp Act |
|---|---|---|---|
| Delhi (NCT) | â‚ą100 / â‚ą50 | SHCIL E-Stamp Paper | Delhi Stamp Rules / Schedule I-A |
| Maharashtra (Mumbai) | â‚ą100 / â‚ą500 | e-SBTR / Physical Stamp Paper | Maharashtra Stamp Act (Article 4) |
| Karnataka (Bengaluru) | â‚ą100 / â‚ą50 | SHCIL E-Stamp Certificate | Karnataka Stamp Act, 1957 |
| Tamil Nadu (Chennai) | â‚ą100 / â‚ą50 | Physical Non-Judicial Stamp | Tamil Nadu Stamp Act, 1899 |
| Uttar Pradesh (Noida/Ghaziabad) | â‚ą100 | E-Stamp Paper | UP Stamp Act (Schedule I-B) |
| West Bengal (Kolkata) | â‚ą100 / â‚ą50 | Non-Judicial Stamp Paper | Indian Stamp (WB Amendment) Act |
Notarization Best Practice:Always ensure the Notary Public affixes their serial entry number, notary registration seal, and date stamp. An unnotarized affidavit or one lacking official notary credentials is treated as invalid under the Indian Evidence Act, triggering immediate registry scrutiny.
Acceptable Documentary Evidentiary Proofs
The Trade Marks Examiner scrutinizes the evidentiary exhibits annexed to your Rule 25 affidavit. High-quality, dated, and unassailable documentary evidence includes:
1. Earliest Tax & GST Invoices
Dated GST/VAT invoices matching or immediately following the claimed use date. The invoice description must explicitly mention the brand name or product line.
2. CA Certified Turnover Certificate
An audited certificate issued by an independent Chartered Accountant stating annual sales revenue and marketing expenses specifically generated under the trademark with UDIN.
3. Domain WHOIS & Website Proofs
Domain registration certificates (WHOIS timestamp records), Wayback Machine internet archive captures, and e-commerce seller dashboard screenshots.
4. Commercial Agreements & POs
Distribution agreements, supply contracts, customer purchase orders, and export bills of lading demonstrating interstate or international trade.
7-Step User Affidavit Filing Workflow
To ensure seamless acceptance without registry objections, follow this 7-step statutory workflow:
Audit Historical Evidence and Fix Exact User Date
Review your historical business archives to identify the single oldest verifiable commercial invoice or domain registration record. Do not guess a date; your user claim must be anchored to concrete documentary proof.
Confirm that the mark was not used earlier by an unregistered predecessor entity without a valid Assignment Deed. You can verify whether any similar marks were registered during this window by conducting a comprehensivetrademark search.
Collate CA Certified Turnover and Promotional Spends
Engage your Chartered Accountant to draft an official Turnover & Advertising Certificate on their professional letterhead, certifying annual revenue figures specifically generated under the trademark.
Ensure the certificate includes the Chartered Accountant's Membership Number and statutory Unique Document Identification Number (UDIN) for digital verification by registry examiners.
Draft Statutory User Affidavit under Rule 25
Draft the complete affidavit strictly conforming to the 8-part statutory structure outlined above. Incorporate exact deponent details, continuous prior use dates, class descriptions using ourtrademark class finder, and the schedule of annexures.
Review the wording carefully to ensure that it aligns with whether you are filing a Word Mark or a Device Mark under ourword mark vs device mark strategy.
Execute on Non-Judicial Stamp Paper (â‚ą100)
Print the drafted affidavit on appropriate Non-Judicial Stamp Paper or attach it to an official Stock Holding Corporation (SHCIL) e-stamp certificate of â‚ą100 value.
The authorized deponent must sign all pages of the affidavit and initial every attached documentary exhibit.
Notarize before Authorized Notary Public
Present the executed affidavit before an authorized Notary Public or Oath Commissioner in your jurisdiction.
The Notary will verify deponent identity, record the entry in their register, apply the official notary stamp and signature, and affix the required notarial adhesive revenue stamps.
Upload with Form TM-A on IP India Portal
Digitize the notarized affidavit and all supporting annexures into an optimized, high-resolution PDF document.
During online e-filing of Form TM-A, select “User claim date”, enter the exact DD/MM/YYYY date, and upload the combined PDF under the mandatory “User Affidavit&rdquo. Attachment section using a Class 3 Digital Signature Certificate.
Monitor Examination and Defend Prior Use
Track the electronic status of your application. When the examination report is issued, your trademark attorney can cite your Rule 25 affidavit to defeat cited marks. If objections arise, refer to our comprehensive guide onhow to respond to trademark examination reportandhow to overcome trademark objection.
Once accepted and advertised in the Trade Marks Journal, your verified prior user date stands as unassailable statutory proof of seniority.
Common User Affidavit Pitfalls to Avoid
Overlooking procedural formalities when preparing a Rule 25 affidavit can cause fatal rejections. Avoid these 4 critical mistakes:
1. Claiming Use Dates Prior to Company Incorporation without Assignment
If your Private Limited company was incorporated on 01/01/2022, you cannot directly claim use “since 2018&rdquo. Under the company name unless you execute and file a formal Trademark Assignment Deed transferring the founder's prior individual rights to the corporate entity.
2. Attaching Invoices Lacking the Brand Name or Trademark Logo
Submitting general company sales invoices that mention product categories (e.g. “Cotton Shirts”) without explicitly displaying the trademark name (e.g. “BrandX Cotton Shirts”) will be rejected by the examiner as inconclusive proof of mark adoption.
3. Vague or Ambiguous Date Declarations
Phrases like “since 2019” or “for approximately four years” violate Rule 25. The registry e-filing system strictly requires an unambiguous day, month, and year (DD/MM/YYYY).
4. Unnotarized Affidavits or Defective Stamp Duty
Executing an affidavit on plain company letterhead or submitting a scanned copy without a live Notary Public seal and serial entry number constitutes a formal defect resulting in a Formality Check Fail notice.
Trademark User Affidavit Checklist
- Fix Exact User Date:Identify the oldest authenticated invoice date and enter it in DD/MM/YYYY format.
- Procure â‚ą100 Stamp Paper:Purchase Non-Judicial E-Stamp paper in the name of the applicant entity or deponent.
- Obtain CA Turnover Certificate:Secure an audited turnover statement with UDIN certifying brand sales and ad spends.
- Collate Earliest Tax Invoices:Assemble sales bills clearly showing the brand name and customer details.
- Execute and Notarize:Have the authorized deponent sign before a certified Notary Public with seal.
- Digitize into Unified PDF:Combine affidavit and Annexures A to E into an optimized PDF for TM-A e-filing.
Frequently Asked Questions
Q.What is a Trademark User Affidavit under Rule 25 in India?
A Trademark User Affidavit is a formal sworn statement executed on non-judicial stamp paper under Rule 25 of the Trade Marks Rules, 2017. It is mandatory whenever an applicant claims that their trademark has been in commercial use in India before the date of filing Form TM-A, rather than applying on a 'Proposed to be used' basis. The affidavit establishes the exact date of first use and includes documentary proof such as tax invoices, sales figures, and advertising records.
Q.Is a User Affidavit mandatory for all trademark applications in India?
No. A User Affidavit is only mandatory if you claim a specific prior use date (e.g., 'Continuous use since 15/04/2019') in Form TM-A. If you file the application as 'Proposed to be used' (meaning you intend to use the mark in the future but have not conducted commercial sales yet), no user affidavit or historical documentary evidence is required at the time of initial filing.
Q.What is the legal difference between 'Prior Use' and 'Proposed to be Used'?
Under Indian trademark law, rights are primarily established on a 'first-to-use' common-law principle rather than purely 'first-to-file'. Claiming a valid prior use date under Section 34 grants senior rights over subsequent filers, helps overcome Section 9 descriptive objections through acquired distinctiveness, and defeats Section 11 conflicting mark citations. 'Proposed to be used' applications establish priority solely from their application filing date.
Q.What documents are accepted as valid proof of prior trademark use?
The Trade Marks Registry accepts dated GST/VAT tax invoices clearly displaying the trademark name, audited turnover certificates issued by a Chartered Accountant, bills of lading, purchase orders, packaging labels showing the brand name, domain registration WHOIS records, timestamped social media promotions, print media advertisements, and bank statements reflecting commercial transactions under the brand.
Q.How much stamp paper value is required for a Trademark User Affidavit?
The stamp paper value is determined by the state stamp act where the affidavit is executed. In most Indian states—including Delhi, Maharashtra, Karnataka, Tamil Nadu, Uttar Pradesh, and Haryana—a Non-Judicial Stamp Paper (or e-stamp certificate) of ₹100 is standard and legally accepted. In some jurisdictions, ₹50 stamp paper is also valid, but ₹100 is universally recommended to prevent formality check objections.
Q.Can I claim a prior use date before my company was incorporated?
Yes, but only if the brand was originally adopted and used by the founder as a sole proprietor or partnership before incorporation. In such cases, the company must execute and place on record a formal Trademark Assignment Deed or Business Transfer Agreement transferring the prior use rights and accumulated goodwill from the promoter/individual to the newly incorporated Private Limited company or LLP.
Q.What happens if the date on my invoices does not match the claimed use date?
If the oldest documentary proof (such as a tax invoice) bears a date later than the date claimed in Form TM-A, the Trade Marks Registry will issue a Formality Check Fail notice or an Examination Objection. The applicant will either have to produce earlier corroborated evidence matching the claimed date or file Form TM-M with statutory fees to amend the user date to the earliest verifiable invoice date.
Q.Can I submit the User Affidavit after filing Form TM-A if I forgot to upload it?
If you claimed prior use in Form TM-A but failed to attach the User Affidavit at the time of e-filing, the registry will issue a Formality Check Fail status. You can cure this defect by uploading the duly executed, stamped, and notarized User Affidavit along with supporting exhibits via the IP India portal under Form TM-M or through a formal formality compliance reply within 30 days.
Strategic Legal Counsel
Claiming prior use is one of the most powerful legal strategies available in Indian trademark practice. It transforms a vulnerable mark into a senior intellectual property asset that can defeat younger registrations, overcome examination objections, and withstand third-party oppositions.
However, the strength of your prior use claim depends entirely on the legal accuracy of your Rule 25 User Affidavit. Partnering with seasoned trademark attorneys ensures your affidavit is drafted flawlessly, stamp duty is reconciled, and documentary exhibits are structured to secure fast-track acceptance. Initiate your prior use trademark filing today to solidify your brand legacy.
Claim Your Brand Seniority Today
Work with expert IP attorneys to draft, stamp, notarize, and file your Trademark User Affidavit under Rule 25. Protect years of goodwill and secure nationwide exclusivity.
Certified IP Advocates • Rule 25 Compliant Drafting • CA Certificate Assistance