Formality Check Fail in trademark: Application status with the defects

Trademark Application status of "Formality Check Fail"

The process of trademark registration start after the filing of a Trademark Application with the Indian Trade Marks Registry offices. A trademark application goes through different stages before it is registered.

The Stages include in the Trademark Registration as under.

Send to Vienna Codification
Marked for Examination
Formality Check Pass
Formality Check Fail
Objected
Ready for Show cause Hearing
Accepted Before Advertisement
Accepted & Advertised
Opposed
Registered
Renewal due

If the reply is not filed within the prescribed period then trademark application gets rejected/ abandoned. Hence, the trademark applicant should to check the status of the trademark application at the regular interval.

This Article is describes the Trademark Application  status of "Formality Check Fail".

What do you mean by "Formality Check Fail"?

The Trademark Application  status "Formality Check Fail" means the Registrar will examine the Application at the preliminary level. Here the Registrar will check the basic information and supporting documents deposited with the Trademark application with the Indian Trade Marks Registry offices online or offline.

Reasons for "Formality Check Fail" of Trademark Application :–

While making a Trademark application one has to select the category under which the application is to be filed. The categories are divided into four parts which are;

Individual/Sole Proprietor
Startup
Small Enterprise
Others

Hence, if the proper category is not selected then the Trademark application status falls under the "Formality Check Fail".

Incorrect Name of Applicant
Incorrect Address of Applicant
Incorrect Country of Applicant
Incorrect Jurisdiction of Applicant
Incorrect Email Address of Applicant
Incorrect Nature of Applicant

Example:  if Applicant is Indian Private Limited Company then the Nature of Applicant will be Body Incorporate & Legal Status of Applicant will be AN INDIAN PRIVATE LIMITED COMPANY

Incorrect Legal Status of Applicant
Incorrect Category of Mark
Incorrect Trade Mark
Incorrect Image Description
Incorrect Image Description

IF MARK IN A LANGUAGE OTHER THAN HINDI OR ENGLISH eg. Bengali, Bangla

Then the Applicant have to provide
Transliteration of the mark in roman script:-
Translation of the mark in English:-

if the Applicant fails to comply the above formalities then the Trademark application status falls under the "Formality Check Fail".

Incorrect CLASS OF GOODS OR SERVICE

The Indian Trade Mark has divided the goods and services into 1 to 45 classes. The correct class needs to be selected at the time of filing a Trademark Application.

Example: if Applicant is Indian Private Limited Company manufacturing or dealing in Pharmaceutical goods then Class  should be 5 & Description of goods should be PHARMACEUTICAL PREPARATIONS. if the Class is correct but description of goods is not as per the Nice Classification (NCL) or vice versa, established by the Nice Agreement (1957), is an international classification of goods and services then the Trademark application status falls under the "Formality Check Fail".

Improper Uploaded Documents:

The timeline of  Trademark Registration Process can further stretch if all the required documents are not submitted/Uploaded Documents. This includes putting up an application with important documents like such as Power of Attorney, USER AFFIDAVIT" & proofs in support of claim for User Date, supporting documents for claiming a rebate on application fees i.e. start-up or MSME Certificate, etc.

It might happen the Uploading Documents are corrupted/not proper and the Examiner is unable to open/ view/ unreadable to them. In such cases the examiner mark the Trademark Application status as "Formality Check Fail" and asks to submit the documents again.

Improper Information:

All the required information in the application must be filled properly as required. For example, the translation and transliteration must be provided if the brand name is in a language other than English or Hindi. The name, address and other details of the applicant must be as per the Power of Attorney; the user date must be mentioned properly, It is recommended that mark images have a length of no less than 250 pixels and no more than 944 pixels, and a width of no less than 250 pixels and no more than 944 pixels. Mark images should have little or no white space appearing around the design of the mark., etc.

Trade Mark and logo are different:

If the logo and the provided Trade Mark are different from each other and the words mentioned in the logo do not match with the Trade Mark, then the Examiner marks the status as "Formality Check Fail". Hence, both the logo and the brand/ Trade Mark must correlate with each other.

Actions to take

The ministry will issue a notice for "Formality Check Fail" along with reasons issuing the same. The applicant has to file the "Formality Check Fail" reply within 30 days from the date of receipt of the notice. Ministry will mark the application as ABANDONED upon not receiving the response within the specified period (within 30 days from the date of receipt of the notice).

If the ministry is satisfied with the reply, then it will process the application for the next stage. If the reply is not satisfactory then ministry may again mark the status as "Formality Check Fail".

One can avoid this stage by filling the correct & proper information in Trademark Application. To process smoothly trademark must be filed through Trade Mark Agent/Attorney. But sometime, due to technical reasons, one may come across this stage. It is simple to file the reply for the "Formality Check Fail" by clearing the issues raised by the ministry.