Filing Evidence in Support of the Trademark Application (India, Rule 46)

When your trademark is challenged—or even if it faces no objection—you may need to back your claim with proof. Under Indian law, Rule 46 of the Trade Marks Rules, 2017, lays out how and when the applicant must file evidence in support of their trademark application during opposition proceedings.

When the Evidence Must Be Submitted

You have a strict two-month window to file your evidence under Rule 46. This period begins from the earlier of:

• Receipt of the opponent’s evidence under Rule 45; or

• The date you receive the opponent’s written waiver indicating they won’t submit evidence.

Failing to file your evidence—or a formal waiver letter—within this period results in your trademark application being deemed abandoned.

What Kind of Evidence Can You File?

Evidence must come as a sworn affidavit that includes:

• Factual details supporting your use or registration of the mark

• Attachments and exhibits (e.g., invoices, advertisements, packaging, media coverage)

• Proof that the mark is distinctive or in use in India

Once you’ve compiled your evidence, a copy should be submitted to both:

• The Registrar of Trademarks, and

• The opponent, to ensure transparency and fairness

The Waiver – A Strategic Option

If you decide not to file additional evidence, you’re allowed to file a waiver letter within the same two-month deadline. This waiver can state you’ll rely solely on:

• The facts stated in your counter-statement, and/or

• Evidence you’ve previously submitted in connection with the original application

Why This Step Matters

This stage is your formal chance to bolster your application:

• Add muscle to claims of use or distinctiveness

• Neutralize the opponent’s objections with factual backing

• Avoid automatic abandonment of your application

You must take this timely, or the Registry treats your silence as a conscious withdrawal. This makes Rule 46 compliance a make-or-break move in opposition proceedings.