A prior use claim inserted in a trademark application in India needs to be supported with an Affidavit along with supporting evidence. However, does the law mandatorily require invoices to be submitted to prove a prior use claim? According, to the Trade Marks Act, 1999 and the Trade Marks Rules, 2017, the answer is – no. The kinds of supporting documents that are required are neither specified in the Act nor the Rules.
Supporting evidence can be of any type, it can be in the form of invoices, social media posts, Wayback Machine’s archived webpages, dated extracts of webpages, advertisements and publications in the print/digital media, photographs of product packaging, press releases, dated photographs of hoardings, banners, etc., correspondences, photographs of use of the mark at events, etc. The 2 key things that should be ensured while pegging the prior use claim are that i. the supporting evidence should feature the applied-for mark; and ii. the evidence should be dated.
