Structure, Stamping, Exhibits and Model Clauses — A Practitioner’s Guide

By Delhi Legal Company · Trademark & IP Advisory Updated August 2026 · Reading time ~18 minutes

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In short: Where a trademark application claims use prior to the filing date, Rule 25(2) of the Trade Marks Rules, 2017 requires an affidavit testifying to that use, supported by documents. It is executed on non-judicial stamp paper, sworn before a notary, and deposed by the applicant or a person authorised to speak for the applicant. It stays in the Registry file permanently and is publicly inspectable. The two failures that account for most trouble are exhibits that post-date the claimed date of first use, and deponents without authority or personal knowledge.

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Contents

1. Why the user date matters before you draft anything
2. The legal basis — Rule 25(1), Rule 25(2) and Rule 120
3. What changed in 2017
4. When the affidavit is required and when it is not
5. Who may depose
6. Fixing the date of first use — the methodology
7. Execution: stamp paper and notarisation
8. Structure of the affidavit, with model clauses
9. A specimen skeleton
10. The exhibits: what carries weight
11. Errors that undo the whole affidavit
12. Filing mechanics
13. Life after filing
14. Amending an affidavit already on file
15. Special situations
16. Pre-filing checklist
17. Frequently asked questions

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1. Why the user date matters before you draft anything

A user claim is not a decorative detail on Form TM-A. It changes the legal position of the application in several concrete ways, and each of them is a reason to take the affidavit seriously.

It anchors priority in a conflict. Where two proprietors claim the same or similar mark, the party with the earlier established use is frequently in the stronger position. Under Section 34 of the Trade Marks Act, 1999, a registered proprietor cannot interfere with a continuous prior user of an identical or similar mark from a date earlier than the proprietor’s use or registration. The affidavit is the document in which that earlier date is first put on record, on oath.

It supports a case for acquired distinctiveness. Where an application faces an objection on absolute grounds — that the mark is descriptive, laudatory or otherwise non-distinctive — evidence of long and substantial use is the route to showing the mark has come to distinguish the applicant’s goods in fact. The user affidavit and its exhibits are the foundation of that argument.

It strengthens the applicant in opposition. An opponent who claims prior rights must be met with evidence. An affidavit filed at the outset, with contemporaneous exhibits, is considerably more persuasive than evidence assembled after opposition has been filed and litigation has begun.

It affects vulnerability to rectification. A registration can be challenged for non-use under Section 47, and can be rectified under Section 57 where an entry was made without sufficient cause or wrongly remains on the register. An overstated user claim, on oath, hands the challenger a ready-made line of attack.

It is read in due diligence. In an acquisition, an investment round or a portfolio sale, counsel for the buyer will pull the Registry file. An affidavit that cannot be reconciled with the company’s own books is a diligence finding.

The practical conclusion: the affidavit is drafted for the reader who wants to disprove it, not for the examiner who may accept it without comment.

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2. The legal basis — Rule 25(1), Rule 25(2) and Rule 120

Rule 25 of the Trade Marks Rules, 2017 contains two sub-rules:

Rule 25(1) — An application to register a trademark shall, unless the trademark is proposed to be used, contain a statement of the period during which, and the person by whom, it has been used in respect of all the goods or services mentioned in the application.

Rule 25(2) — In case the use of the trademark is claimed prior to the date of application, the applicant shall file an affidavit testifying to such use along with supporting documents.

The distinction is worth stating plainly, because it is routinely blurred:

The citation error worth avoiding

A number of widely-circulated Indian guides, blog posts and even some agency templates cite “Rule 25(10)” as the source of the affidavit requirement. Rule 25 has no sub-rule (10). The requirement is Rule 25(2). If you are drafting a document that will sit in a Registry file for decades and be read by opposing counsel, cite the sub-rule that is actually there.

Rule 120 — the form of affidavits

Rule 120 governs the form of affidavits in trademark proceedings generally. In substance it requires that an affidavit be:

• Headed in the matter of the Act and of the relevant proceeding
• Drawn in the first person, stating the deponent’s description and true place of abode
• Divided into consecutively numbered paragraphs, each confined as far as possible to one subject
• Sworn before a person having authority to administer oaths

An affidavit drafted as flowing prose, with facts and exhibits mixed across long unnumbered paragraphs, is harder to cross-reference, harder to answer, and looks unprofessional in a file that specialists will read.

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3. What changed in 2017

The 2017 change is easy to underestimate. Under the earlier regime it was common for applicants to enter an ambitious user date and never be asked to prove it. That habit persisted well past 2017 in some quarters, which is precisely why so many files now contain user dates that the applicant’s own exhibits do not support.

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4. When the affidavit is required and when it is not

A note on “proposed to be used”. If the evidence is thin, weak or unverifiable, filing on a proposed-to-be-used basis is a legitimate and often sensible choice. It is not a defeat. What is a defeat is an early user date that the applicant cannot stand behind when the file is opened three years later in opposition.

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5. Who may depose

Authority is not a formality

A company affidavit deposed by an employee with no board authorisation is open to challenge on the footing that the deponent had no standing to swear to the company’s affairs. Where the deponent is not a director:

• Pass a board resolution authorising that person to depose in the matter
• Keep the resolution on file and be prepared to produce it
• Consider exhibiting the resolution to the affidavit itself where the deponent’s authority is likely to be questioned
• Ensure the resolution pre-dates the affidavit

Personal knowledge is not a formality either

The deponent must be able to say, credibly, that they know the facts sworn to. An affidavit swearing to use from 2019, deposed by a person who joined the company in 2024, is weak on its face, and an opponent will say so.

Where the deponent’s knowledge is partly derived from company records rather than personal recollection, the honest and safer course is to say so expressly in the verification — for example, that paragraphs 4 to 8 are true to the deponent’s personal knowledge and paragraphs 9 to 12 are true on the basis of the applicant’s records maintained in the ordinary course of business, which the deponent believes to be true. A qualified verification is stronger than an unqualified one that collapses under questioning.

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6. Fixing the date of first use — the methodology

This is the step most often done backwards, and it is where the affidavit is won or lost.

The wrong order: the client names a date from memory → the date goes on Form TM-A → someone is asked to find documents supporting it → the documents do not go back that far.

The right order:

1. Collect first. Ask for the earliest surviving material of every kind — invoices, purchase orders, packaging artwork with dates, print advertisements, registration or incorporation documents, GST or VAT records, domain registration records, dated photographs of signage.
2. Sort by date and by mark. Discard anything showing a materially different mark, or goods outside the intended specification.
3. Identify the earliest credible, dated, mark-bearing document for goods or services within the specification.
4. Set the user date by reference to that document — on or about its date, not earlier.
5. Then complete Form TM-A and draft the affidavit.

Rule of thumb: the earliest credible document sets the date. The date does not set out in search of a document.

What “credible” means

A document is credible for this purpose when it is (a) dated on its face, (b) shows the mark as applied for or in a form not materially different, (c) relates to goods or services within the specification, and (d) is capable of independent verification — because it was issued to a third party, filed with an authority, published, or archived.

An internal, undated design file is not credible evidence of a 2019 launch. A tax invoice issued to a customer in 2019, bearing the mark, for goods in the specification, is.

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7. Execution: stamp paper and notarisation

The affidavit is executed on non-judicial stamp paper and sworn before a notary public appointed under the Notaries Act, 1952, or another officer empowered to administer oaths.

Stamp duty

Stamp duty on affidavits is a State subject. The rate and the manner of payment vary by the State of execution, and States amend their schedules from time to time. ₹100 non-judicial stamp paper is commonly used in practice, but the correct course is to confirm the current rate for the State where the affidavit is being sworn rather than assuming a figure carried over from an old precedent.

Some States have moved to e-stamping; where that is the case, an e-stamp certificate with a verifiable unique identification number is generally preferable to physical paper, because it can be validated online years later.

Defects that cause avoidable objections

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8. Structure of the affidavit, with model clauses

The model language below is illustrative. It should be adapted to the facts — language lifted unaltered into a file where it does not fit the facts is worse than no precedent at all.

8.1 Heading

IN THE MATTER OF the Trade Marks Act, 1999 and the Trade Marks Rules, 2017;

AND IN THE MATTER OF Application No. [____] dated [DD/MM/YYYY] in Class [__] for registration of the trade mark [MARK] in the name of [APPLICANT].

AFFIDAVIT OF USE UNDER RULE 25(2) OF THE TRADE MARKS RULES, 2017

8.2 Deponent identification

I, [Full name], aged about [__] years, son/daughter of [____], occupation [____], resident of [full address], do hereby solemnly affirm and state as follows:

1. That I am the [Director / Designated Partner / Partner / Proprietor / Karta / authorised signatory] of the Applicant, [Applicant’s full legal name], having its [registered office / principal place of business] at [address], and I am duly authorised to swear this affidavit on behalf of the Applicant by virtue of [a board resolution dated DD/MM/YYYY, annexed hereto as Exhibit A / my position as sole proprietor].
2. That I am conversant with the facts and circumstances of the Applicant’s business deposed to herein, the same being within my personal knowledge and borne out by the records of the Applicant maintained in the ordinary course of business.

8.3 The applicant and the mark

3. That the Applicant is engaged in the business of [description of business] and has, in the course of that business, adopted and used the trade mark [MARK].
4. That the said trade mark consists of [word mark / device / composite mark, described]. A representation of the mark as used is annexed hereto as Exhibit B.

Where the mark is a device or composite mark, reproduce it in the body of the affidavit as well as exhibiting it. A verbal description alone leaves room for argument about what was actually used.

8.4 The date of first use

5. That the Applicant has used the said trade mark in India in relation to the goods/services specified in the application continuously since [DD/MM/YYYY], which is the date of first use stated in Form TM-A.

The date must match Form TM-A exactly, in DD/MM/YYYY. A mismatch between the form and the affidavit is a self-inflicted contradiction, and it is the first thing a careful opponent checks. Where the precise day is genuinely unknown, the honest formulation is a month and year (“since March 2019”) rather than a fabricated precision, and Form TM-A should be completed consistently with it.

8.5 Continuity of use

6. That the said use has been continuous, open and uninterrupted from the said date to the date of this affidavit.

Or, where it has not been:

6. That the said use was continuous from [date] to [date]; that between [date] and [date] the Applicant’s operations were suspended by reason of [reason]; and that use resumed from [date] and has been continuous since.

Gaps disclosed are manageable, and the reasons are frequently legitimate — a plant shutdown, a regulatory approval pending, a pandemic closure. Gaps concealed and later discovered are a different problem altogether, because the issue ceases to be the gap and becomes the concealment.

8.6 Goods and services

7. That the said trade mark has been used in relation to [list goods/services], being goods/services falling within the specification set out in the application.

Where use covers only part of the specification, say so expressly and identify which part. An affidavit that implies use across a specification the applicant has never traded in is an invitation to a partial refusal or a later non-use challenge.

8.7 Geographic scope

8. That the said trade mark has been used by the Applicant in [States / cities / regions] within India, and the Applicant’s goods bearing the mark are sold through [channels].

Regional use is perfectly legitimate and frequently sufficient. Overstating geographic reach is a needless risk: it is easy to disprove from the applicant’s own invoices.

8.8 Nature and extent of use

9. That the said trade mark is applied to and used upon [packaging, labels, cartons, signage, invoices, letterheads, advertising material, digital platforms — as applicable].
10. That the annual turnover of the Applicant attributable to goods/services bearing the said trade mark is as follows:

Two cautions on the figures. First, they must be attributable to the mark, not the applicant’s total turnover across all brands — an opponent who obtains the audited accounts will notice the difference. Second, figures that can be tied to audited financial statements or a chartered accountant’s certificate carry materially more weight than figures asserted in the body of the affidavit alone.

8.9 Exhibits

11. That in support of the foregoing, the Applicant annexes hereto the following documents:

Exhibit	Description	Date / period	Supports paragraph
A	Board resolution authorising the deponent	DD/MM/YYYY	1
B	Representation of the mark as used	—	4
C	Tax invoice No. [__] issued to [customer]	DD/MM/YYYY	5
D	Sample invoices, [year]–[year]		5, 9
E	Advertisement published in [publication]	DD/MM/YYYY	9
F	Packaging and label artwork as used		9
G	Chartered accountant’s certificate of turnover	DD/MM/YYYY	10

An exhibit table of this kind takes ten minutes to prepare and does more for the affidavit’s credibility than several paragraphs of adjectives.

8.10 Verification

VERIFICATION

I, the deponent above named, do hereby verify that the contents of paragraphs [1 to 11] above are true and correct to my knowledge, that no part of it is false, and that nothing material has been concealed therefrom.

Verified at [place] on this [__] day of [month], [year].

DEPONENT

Where knowledge is partly on records, split the verification as described in section 5 above.

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9. A specimen skeleton

For quick reference, the running order of a complete filing:

1. Heading (Act, Rules, application number, class, mark)
2. Deponent’s name, age, occupation, address
3. Capacity and authority to depose
4. Basis of knowledge
5. The applicant and its business
6. The mark, described and reproduced
7. Date of first use, matching Form TM-A
8. Continuity of use, with any gaps disclosed
9. Goods and services, mapped to the specification
10. Geographic scope
11. Manner of use
12. Turnover and promotional expenditure, year by year
13. Exhibit list, cross-referenced to paragraphs
14. Verification
15. Signature of deponent on every page
16. Notarial attestation with seal, signature, registration number, register entry number and date
17. Exhibits, in the order listed, each attested

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10. The exhibits: what carries weight

The affidavit is only as good as what is annexed to it. Rule 25(2) requires “supporting documents” without listing them, which is deliberate: a manufacturer, a restaurant chain and a SaaS business evidence use in entirely different ways.

Preparing the exhibit bundle

• Redact what is genuinely commercially sensitive — customer bank details, unrelated pricing — but do not redact dates, the mark, or the goods description. A redaction that removes the very thing the exhibit is meant to prove is worse than not filing it.
• Cover-sheet each exhibit with the exhibit letter, a one-line description and the paragraph it supports.
• Order the exhibits to match the affidavit’s numbering exactly.
• Scan legibly, straight, at a readable resolution. An unreadable invoice is not evidence.
• Prefer a smaller, stronger bundle. Fifteen well-chosen documents spanning the claimed period beat two hundred undifferentiated pages, which merely invite the reader to find the weakest one.
• Space the evidence across the claimed period. Documents from the first year and the current year, with nothing in between, leave a gap that looks like abandonment.

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11. Errors that undo the whole affidavit

The three fatal ones

Error 1 — Exhibits that post-date the claimed date of first use. The most common failure by a distance. The affidavit swears use from January 2021; the earliest invoice is dated September 2021. The claim is unsupported for eight months, and the discrepancy is visible on the face of the document to anyone who reads the dates in order. This is not a technicality — it is the applicant’s own bundle contradicting the applicant’s own oath.

Error 2 — Exhibits showing a different mark. Evidence of a materially different logo, a different word, or the mark in combination with other elements that change its identity does not support the mark applied for. A rebrand between the claimed date and filing must be addressed expressly, not papered over.

Error 3 — Exhibits showing goods outside the specification. Invoices for consultancy services do not support a use claim over software products. Invoices for restaurant services in Class 43 do not support packaged foods in Class 30.

The next tier

The underlying discipline: assemble the exhibits, then settle the date, then draft. Every one of the errors above is produced by doing those three steps in the wrong order.

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12. Filing mechanics

• The affidavit and its exhibits are uploaded as a single PDF with the TM-A submission.
• Order the exhibits to match the numbering in the affidavit. A bundle in a different order than the list is read as carelessness and makes the evidence harder to follow.
• Check the file size limits applicable to the e-filing portal before compiling; compress images rather than dropping exhibits, and never compress to the point of illegibility.
• Keep the signed physical original with the applicant’s records, along with the stamp paper or e-stamp certificate. If the document is ever questioned, the original matters.
• Retain the underlying evidence, not only the scans. The original invoice books, the physical publication, the packaging samples — these are what will be produced if the matter becomes contested.

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13. Life after filing

The affidavit sits in the Registry file permanently and is publicly inspectable. Over the life of the mark it will be read by:

Opponents read user affidavits closely and specifically. Where an affidavit contains an admission — that use was regional, that it began later than the applicant’s marketing claims, that it covered only some of the goods — that admission is on oath and cannot be walked back conveniently.

Draft it as a document that will be cross-examined, because in a contested matter it effectively will be. And note the obvious corollary: a false statement in an affidavit is not merely a procedural problem. It is a sworn statement, with the consequences that attach to sworn statements under the general law.

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14. Amending an affidavit already on file

The Rules do not lay down a clear framework for amending an affidavit already filed — a gap that academic commentary has identified.

Rule 37 permits correction of clerical errors and amendment on Form TM-M, subject to a proviso barring substantial alteration. That covers a transposed digit in an address or a misspelt name. Altering a sworn claim of use is not straightforwardly clerical, and an application to change a user date after filing is likely to attract the very scrutiny the applicant is trying to avoid — and to be recorded on the file for later readers to find.

Where an error is discovered, the options in practice are narrow:

• A genuine clerical slip — pursue correction under Rule 37 promptly, with an explanation.
• A substantive error in the user date — take advice on whether to file a supplementary affidavit correcting the position, or to withdraw and refile on a corrected basis. Doing nothing and hoping is the worst of the available options, because the discrepancy does not disappear; it simply waits.
• An unsupportable claim discovered before advertisement — it is generally better to correct the position while the file is quiet than to defend it in opposition.

Which is the practical case for getting it right the first time.

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15. Special situations

Use through a predecessor in title. Where the applicant acquired the business or the mark, use by the predecessor can support the claim, but the affidavit must set out the chain — the assignment or business transfer agreement, its date, and what was transferred — and exhibit it. A user date inherited without documented title is an assertion, not evidence.

Use by a licensee or group company. Use by another entity does not automatically accrue to the applicant. The affidavit should identify the entity, the basis on which it used the mark, and whether the use was under the applicant’s control as to quality. Where there is a written licence, exhibit it; where the arrangement is informal, describe it accurately rather than glossing over it.

Rebranding during the claimed period. If the mark evolved, say so and show both forms. The question is whether the changes are material — whether the mark as used retains the identity of the mark applied for. An affidavit that silently exhibits an older, different mark invites the objection; one that addresses the evolution head-on at least frames the argument on the applicant’s terms.

Foreign applicants. A foreign applicant may file a user affidavit on the same basis as an Indian applicant, but the use evidenced must be use in India. Reputation and sales abroad are relevant to other arguments, not to a Rule 25(2) user claim. Execution abroad will require notarisation in the country of execution and, depending on that country’s status under the Hague Apostille Convention, an apostille or consular legalisation. Build the additional time into the filing schedule — this is a common cause of avoidable delay.

Multi-class applications. A single application covering several classes may involve different first-use dates for different classes. Address each class distinctly rather than applying the earliest date across all of them.

Series marks and variants. Where an application covers a series, the affidavit should indicate which variants were actually used and from when. Silence implies use of all of them.

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16. Pre-filing checklist

The date

• Earliest credible dated exhibit identified
• User date set by reference to that exhibit
• Date on the affidavit matches Form TM-A exactly, in DD/MM/YYYY
• Any interruption in use disclosed

The deponent

• Deponent falls within the correct category for the applicant type
• Board resolution or equivalent authority in place, and pre-dating the affidavit
• Deponent has personal knowledge of the period sworn to, or the verification is properly qualified
• Full name, age, occupation and address stated

The content

• Correctly headed under the Act and Rules, with application number, class and mark
• Numbered paragraphs, one subject each, first person
• Mark described and reproduced
• Goods/services mapped to the specification; partial use disclosed
• Geographic scope stated accurately
• Turnover attributable to the mark, year by year, and certifiable
• Verification clause complete, dated and place-stated

The execution

• Correct stamp duty for the State of execution confirmed (not assumed)
• Stamp paper in the deponent’s or applicant’s name, reasonably contemporaneous
• Notary’s seal, signature, registration number and date present and legible
• Notarial register entry number appearing
• Every page signed or initialled by the deponent
• Exhibits attested

The bundle

• Exhibits dated on or before the claimed date where they support it
• Exhibits show the mark as applied for
• Exhibits relate to goods/services within the specification
• Evidence spread across the claimed period, not clustered
• Exhibit list cross-referenced to paragraphs
• Bundle ordered to match the list
• Everything legible after scanning
• Compiled as a single PDF within portal limits
• Signed original and underlying evidence retained by the applicant

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17. Frequently asked questions

Q1. Which rule requires the user affidavit? Rule 25(2) of the Trade Marks Rules, 2017. Rule 25(1) requires the statement of user in the application itself. Rule 25 has no sub-rule (10), despite what several published guides state.

Q2. What stamp paper value is required? Stamp duty on affidavits is governed by State law and varies. ₹100 non-judicial stamp paper is commonly used in practice; confirm the current rate for the State of execution rather than relying on a figure carried over from an old precedent.

Q3. Can the trademark agent or attorney depose the affidavit? No. The deponent must be the applicant, or a person authorised to speak for the applicant with personal knowledge of the use. The agent’s authorisation on Form TM-M is a separate document serving an entirely different purpose.

Q4. What if use has been interrupted? Disclose it. A gap in use is not automatically fatal and the reasons may be perfectly legitimate. Concealment discovered in opposition is considerably more damaging than disclosure made at the outset.

Q5. Can a foreign applicant file a user affidavit? Yes, on the same basis — but the use evidenced must be use in India. Execution abroad may require notarisation and, depending on the country, an apostille or consular legalisation.

Q6. What happens if no affidavit is filed with a user claim? The filing is deficient. In practice this surfaces as an objection, and the applicant is put to the trouble of curing it later — with the added difficulty that the evidence is now being assembled after the date has already been asserted on the form.

Q7. How many exhibits should be filed? There is no prescribed number. What matters is coverage and quality: documents that establish the claimed start date, and documents spread across the period to the present. A focused bundle of well-chosen exhibits is more effective than a large undifferentiated one.

Q8. Are screenshots of a website acceptable evidence? They can be, but a present-day screenshot proves the position today, not in 2019. Independent archival corroboration — an entry in a web archive, a dated platform record, a dated invoice from the hosting or advertising provider — makes online evidence considerably stronger.

Q9. Can use by a sister concern or licensee support the applicant’s claim? Potentially, but it must be explained rather than assumed. Set out the relationship, the basis on which the mark was used, and the applicant’s control over the quality of the goods or services; exhibit any written licence.

Q10. What if the mark changed during the period of claimed use? Address it in the affidavit and exhibit both forms. The question is whether the mark as used retains the identity of the mark applied for. Silence on a visible change is the weaker course.

Q11. Can the user date be amended after filing? There is no clear framework for amending a sworn affidavit already on file. Rule 37 permits correction of clerical errors on Form TM-M, subject to the bar on substantial alteration, but a change to a sworn use claim is not straightforwardly clerical. Take advice before acting, and act promptly.

Q12. Is the affidavit visible to the public? Yes. It remains in the Registry file and is publicly inspectable. It will be read at examination, in any opposition, in any rectification proceeding, in litigation, and in due diligence.

Q13. Should the affidavit be filed if the evidence is weak? If the evidence will not support a prior-use claim, the better course is usually to file on a “proposed to be used” basis. A weak user claim on oath is a liability that follows the registration for its whole life; a proposed-to-be-used filing carries no such baggage.