1. Introduction: The Smallest Box on Form TM-A With the Biggest Consequences

Every application for registration of a trade mark in India, filed on Form TM-A, contains a deceptively small field. It asks the applicant to state whether the mark is “Proposed to be Used,” or, alternatively, to specify a date of first use in the DD/MM/YYYY format. Most applicants and a surprising number of practitioners treat this field as an administrative formality. It is not. It is one of the most consequential declarations in the entire application, and it is a declaration that the applicant will be held to for the life of the registration and beyond.

The date entered in that box, commonly called the user date or date of first use, does three things simultaneously. First, it fixes the point from which the applicant asserts proprietary rights in the mark. Second, it becomes a sworn statement, because under the Trade Marks Rules, 2017, a claim of use prior to the filing date must be supported by an affidavit. Third, it becomes a permanent, publicly searchable entry on the Trade Marks Register, available to every competitor, opponent, and litigant who ever looks the mark up.

An inflated user date is the single most common self-inflicted wound in Indian trade mark practice. Applicants routinely write “01/01/2010” because the proprietor “has been in this business since 2010,” without pausing to ask whether the mark was used in relation to those goods or services from that date, and whether a single contemporaneous document from 2010 still exists. Years later, when the mark is opposed or when the proprietor sues an infringer, that unverifiable date becomes the defendant’s best weapon. Courts in India have repeatedly held that a party that has misrepresented facts to the Registry or to the court forfeits its claim to discretionary equitable relief such as an interim injunction, and an exaggerated user claim is precisely the kind of misrepresentation that attracts that consequence.

Conversely, an unnecessarily conservative claim, or a needless resort to “proposed to be used” when genuine prior use exists, throws away priority that the applicant has actually earned. Under Indian law, the prior user, not the prior registrant, generally prevails. Surrendering a real user date is surrendering the strongest right the trade mark system offers.

This article examines, in depth, what the two options mean, what the law requires, what evidence is actually needed to substantiate a prior use claim, what (if anything) is required for a “proposed to be used” application, how the Registry and the courts test such claims, how errors can and cannot be corrected, and what happens when a claim is found to be false.

This article is general legal information about Indian trade mark practice, not legal advice on any specific matter. Statutory provisions and case citations should be independently verified before being relied upon in proceedings.

---

2. The Statutory Architecture

2.1 Section 18(1): The Foundation

Section 18(1) of the Trade Marks Act, 1999 provides that any person claiming to be the proprietor of a trade mark used or proposed to be used by him, who is desirous of registering it, shall apply in writing to the Registrar.

Three points follow from this deceptively simple sentence:

• The applicant must claim proprietorship. Filing an application does not create proprietorship; it asserts it.
• The Act expressly contemplates two routes: a mark already used, and a mark proposed to be used. Both are legitimate. Indian law, unlike some jurisdictions, does not require use before filing.
• The word “by him” matters. The use claimed must be by the applicant or by someone whose use enures to the applicant’s benefit (a predecessor in title, a registered user, or a permitted user).

2.2 What “Use” Means Under the Act

The Act does not define “use” in a single place; it builds the concept across several provisions:

• Section 2(1)(zb) defines a trade mark as a mark capable of graphical representation and of distinguishing the goods or services of one person from those of others, used or proposed to be used in relation to goods or services for the purpose of indicating a trade connection in the course of trade.
• Section 2(2)(b) clarifies that a reference to the use of a mark includes a reference to the use of a printed or other visual representation of the mark.
• Section 2(2)(c) provides that use of a mark in relation to services means use as or as part of any statement about the availability, provision or performance of those services. This is why, for service marks, advertising, brochures, signage, booking confirmations, and even a live website can constitute use.
• Section 29(6) enumerates what amounts to “use” in the infringement context, including affixing the mark to goods or packaging, offering or exposing goods for sale under the mark, importing or exporting goods under the mark, using the mark on business papers, and using it in advertising.

The critical takeaway is that use must be in the course of trade. Internal preparation, private correspondence, or a mark printed on stationery never distributed to anyone is not use. But equally, use is broader than a completed cash sale. In Hardie Trading Ltd. v. Addisons Paint & Chemicals Ltd., (2003) 11 SCC 92, the Supreme Court held that “use” is not limited to physical sale of goods and may include non-physical use such as advertising, provided it is genuine use in relation to the goods in the course of trade and not merely token use to defeat a non-use challenge.

2.3 Rule 25 of the Trade Marks Rules, 2017: The Game Changer

Rule 25 is the operative procedural provision. In substance it says:

(1) An application to register a trade mark shall, unless the trade mark 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.

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

The change from the earlier regime is decisive. Under the Trade Marks Rules, 2002, the equivalent provision left it to the discretion of the Registrar to call for an affidavit of use. Under the 2017 Rules, filing the affidavit with supporting documents is mandatory wherever prior use is claimed. It is not something to be produced later “if asked.” It is a filing requirement.

The practical consequence, and the one that surprises most applicants, is this: if you claim a user date but file no affidavit, the Registry will ordinarily raise an objection and, in practice, may treat the application as one for a mark “proposed to be used.” The claimed date is then effectively lost, notwithstanding that genuine use existed.

2.4 Where the Claim Appears on Record

The user date is captured at three levels:

1. Form TM-A — the field “Used since” or “Proposed to be used.”
2. The Rule 25 affidavit and its exhibits — the evidentiary substratum.
3. The published journal entry and the Register — where the date is visible to the world under Section 6 read with the publication provisions.

Because the date appears on the public record, an opponent under Section 21 sees it before filing a notice of opposition, and it forms the first line of attack in most oppositions and rectifications.

---

3. Option A: “Proposed to be Used”

3.1 What It Means

“Proposed to be used” (often abbreviated as “Proposed” in Registry records) means the applicant has not yet commenced use of the mark in relation to the goods or services covered, but genuinely intends to do so. It is an intent-to-use filing.

This is entirely legitimate and, for many applicants, strategically correct. India permits registration in advance of use. There is no requirement to file a “statement of use” before registration is granted, unlike in the United States. The mark can proceed to registration purely on the basis of intention.

3.2 What Evidence Is Required at Filing

None. This is the crucial distinction. Rule 25(2) is triggered only where use is claimed prior to the date of application. A “proposed to be used” application requires:

• No affidavit of use
• No invoices
• No advertising material
• No turnover figures

The applicant simply selects “Proposed to be Used” and files. This makes such applications faster, cheaper, and free of the risk that inadequate evidence will sink the claim.

3.3 But “No Evidence Required” Is Not “No Requirement”

The absence of a documentary filing burden does not mean the claim is unconditional. The Act requires a bona fide intention to use. This surfaces in two places:

• Section 47(1)(a): A registered mark may be removed from the Register on the ground that it was registered without any bona fide intention on the part of the applicant that it should be used, and that there has in fact been no bona fide use up to a date three months before the application for removal. This is a distinct ground from ordinary non-use.
• Bad faith: A pattern of filing large numbers of “proposed to be used” applications across unrelated classes, particularly for marks resembling third-party brands, invites the inference that the applicant never intended to use them. Such applications are vulnerable in opposition and rectification proceedings.

In Kabushiki Kaisha Toshiba v. TOSIBA Appliances Co., (2008) 10 SCC 766, the Supreme Court examined the interplay between intention to use, actual use, and removal for non-use, emphasising that the Register should reflect commercial reality rather than serve as a repository of unused monopolies.

So while nothing is filed at the application stage, a prudent “proposed to be used” applicant should build and preserve a contemporaneous record of intention:

• Board resolution or partners’ minute approving adoption of the mark
• Brand strategy documents, naming exercise records, clearance search reports
• Logo/artwork commissioning agreements and designer invoices
• Domain name registration in the mark
• Trade mark clearance opinion
• Product development files, packaging mock-ups, dies and moulds orders
• Applications for regulatory approvals (FSSAI licence, drug manufacturing licence, BIS certification)
• Distributor or franchise discussions, term sheets, LOIs

These never need to be filed at application stage, but they are precisely what saves the registration if a Section 47(1)(a) challenge arrives five years later.

3.4 The Non-Use Clock

A “proposed to be used” registration is exposed under Section 47(1)(b): the mark may be taken off the Register if, for a continuous period of five years from the date on which the trade mark is actually entered in the Register, plus three months, there has been no bona fide use in relation to the registered goods or services.

Note carefully: the clock runs from the date of entry in the Register, not from the date of application and not from the date of advertisement. Given Registry timelines, this often gives the proprietor considerably more than five years from filing. But it is a real deadline, and dormant registrations are increasingly targeted.

3.5 You Cannot Retrofit a User Date

This is the point applicants most often miss. If you file as “proposed to be used” on 1 March 2026 and begin actual use on 1 June 2026, you cannot go back and convert the application into one claiming use from 1 June 2026 in a way that creates pre-filing priority. Your priority date against third parties remains the filing date of 1 March 2026, which is usually fine, because the filing date itself operates as the date of application for priority purposes under Section 23(1).

The real loss arises in the opposite scenario: where genuine use predating the filing existed, was not claimed, and later cannot be asserted as a pleaded user date on the Register. The proprietor can still prove prior use in court as a matter of fact (a passing-off plaintiff proves goodwill by evidence, not by Register entries), but the Register will not corroborate the story, and an opponent will point to the applicant’s own “proposed to be used” declaration as an admission that no use existed at filing. That is a genuinely damaging admission.

---

4. Option B: Claiming Prior Use With a Specific Date

4.1 What the Claim Asserts

Entering a date such as 15/08/2019 asserts, on oath, that:

• The applicant (or a predecessor in title whose rights vest in the applicant)
• Used the mark, in the course of trade
• In relation to all the goods or services listed in the application
• From that date
• And, by implication, continuously since.

Each of these limbs is a separate point of attack. The most common failures are:

4.2 Why It Is Worth Claiming (When It Is True)

A substantiated prior user date delivers real advantages:

(a) Priority over registered proprietors — Section 34. Section 34 saves the vested rights of a prior continuous user: the proprietor of a registered mark cannot interfere with, or restrain, the use by any person of an identical or similar mark where that person or a predecessor in title has continuously used the mark from a date prior to the use of the registered mark by the registered proprietor or prior to the date of registration, whichever is earlier. This is the most powerful defensive provision in the Act.

(b) The prior user prevails. In Neon Laboratories Ltd. v. Medical Technologies Ltd., (2016) 2 SCC 672, the Supreme Court reaffirmed the “first in the market” principle: prior user rights override registration obtained later. In S. Syed Mohideen v. P. Sulochana Bai, (2016) 2 SCC 683, the Court held that the rights of a prior user are superior to those of a registered proprietor, and that registration does not extinguish common law rights.

(c) Resisting objections at examination. A cited earlier mark under Section 11 can sometimes be overcome by showing that the applicant’s use predates the cited mark, or by relying on honest concurrent use under Section 12.

(d) Acquired distinctiveness. For descriptive or laudatory marks facing an objection under Section 9(1), the proviso to Section 9(1) allows registration where the mark has, before the date of application, acquired a distinctive character as a result of use. Long, evidenced use is the only route to that proviso.

(e) Insulation against Section 47. A mark in genuine commercial use is not vulnerable to non-use removal.

(f) Strength in litigation. Interim injunctions frequently turn on which party adopted first. A user date backed by hard documents dating back years is a decisive litigation asset.

---

5. The Rule 25 Affidavit: Form, Content and Common Defects

5.1 Who Should Depose

The affidavit must be sworn by a person with personal knowledge of the facts:

• Sole proprietorship: the proprietor
• Partnership firm: a partner
• Company: a director, company secretary, or an authorised signatory holding a board resolution
• LLP: a designated partner

An affidavit sworn by the trade mark attorney, or by a junior employee with no knowledge of the founding period, is a standing invitation to cross-examination. Where the deponent is an authorised signatory, attach the board resolution or power of attorney.

5.2 Contents Checklist

A robust affidavit of use should cover:

1. Deponent’s identity and competence — name, age, designation, address, and the basis of knowledge (including how the deponent knows facts predating their own association, e.g., from company records maintained in the ordinary course of business).
2. Applicant’s constitution and history — date of incorporation/constitution, nature of business, place of business.
3. The mark — reproduced exactly as applied for, with a statement that this is the form in which it has been used.
4. Date and circumstances of adoption — how and why the mark was adopted. This matters: courts probe adoption stories, and a plausible, honest derivation defeats allegations of dishonest adoption.
5. Date of first use — the exact date claimed, and what happened on or about that date (first sale, first invoice, first advertisement, first launch).
6. Continuity — a statement of uninterrupted use from that date to the date of the affidavit, with an explanation of any gaps.
7. Goods/services — a statement that the mark has been used in relation to the goods/services specified, ideally correlated item-by-item to exhibits.
8. Territorial extent — states, cities, and channels of trade.
9. Sales figures, year by year — turnover under the mark, preferably certified by a chartered accountant.
10. Advertising and promotional expenditure, year by year.
11. Channels of trade and distribution — distributors, retailers, e-commerce platforms.
12. Predecessor in title, if any — details of assignment, succession, or conversion of the business entity, with documents.
13. List of exhibits, each specifically referred to in the body.
14. Verification clause stating which paragraphs are true to personal knowledge and which are based on records.
15. Notarisation and, where the deponent is abroad, appropriate consularisation or apostille.

5.3 Common Defects That Destroy Affidavits

• The bare affidavit: a two-paragraph affidavit that recites the user date with no exhibits. It proves nothing.
• Round numbers: turnover stated as “approximately Rs. 50 lakh per year, every year.” Real businesses do not have identical revenue for nine consecutive years.
• Documents that postdate the claim: the affidavit claims 2011; the earliest exhibit is a 2018 invoice. This does not merely fail to prove 2011, it affirmatively suggests the claim is false.
• Mark mismatch: exhibits show “SUNRISE FOODS” while the application is for a stylised “SUNRIZE” device.
• Undated material: brochures, photographs of shops, and label artwork with no date on the face and no printer’s bill to date them.
• Wrong entity: invoices in the name of a sister concern with no licence, registered user entry, or permitted use arrangement pleaded.
• Missing verification or notarisation.

---

6. Documentary Evidence: A Category-by-Category Guide

The Rules say “supporting documents” without enumerating them. This is deliberate — the Registry accepts a wide range of material. What follows is a working taxonomy, roughly in order of evidentiary weight.

6.1 Tier 1: Transaction Documents (Strongest)

Invoices and tax invoices. The gold standard. A useful invoice shows: the mark prominently, the applicant’s name and GSTIN (or the pre-GST VAT/TIN/CST number for older periods), a serial number, a date, a named third-party buyer with address, the specific goods described, quantity, and value. The earliest invoice is the single most important document in the file — it should be the first exhibit and should be dated on or about the claimed user date.

Purchase orders, delivery challans, e-way bills, lorry receipts, and transport documents. These corroborate that goods actually moved.

Bank statements or payment records matching the earliest invoices. This addresses the standard allegation that invoices are self-serving and fabricated.

GST returns / VAT returns / sales registers showing turnover consistent with the invoices produced.

6.2 Tier 2: Market-Facing Material

Advertisements in newspapers, magazines, trade journals, hoardings, radio and television. Preserve the full page including masthead and date, not a cropped clipping. Keep the media invoice and release order — these date the advertisement independently.

Brochures, catalogues, price lists, leaflets, calendars, and point-of-sale material. Where undated on their face, produce the printer’s invoice — this converts an undated brochure into dated evidence, and it is the single most under-used trick in Indian user-evidence practice.

Packaging, labels, cartons, wrappers, bottles, and tags bearing the mark, together with the artwork approval trail and the printer’s or converter’s bills.

Signage and shopfront photographs, ideally with a verifiable date, and the fabricator’s bill.

Trade fair and exhibition participation — stall booking receipts, exhibitor directory entries, event photographs.

6.3 Tier 3: Digital Evidence

Domain registration records (WHOIS output showing the creation date) where the domain incorporates the mark.

Wayback Machine (web.archive.org) captures of the applicant’s website on specific historical dates. These are powerful because they are third-party generated and hard to manipulate. Print with the URL and capture-date banner visible.

Social media pages — the page creation date and dated posts. Screenshots should show the platform’s date stamp.

E-commerce listings — seller dashboards on Amazon, Flipkart, or similar, showing listing creation dates and historical order reports.

Google Business Profile, app store listings, YouTube upload dates.

Note: purely digital evidence, standing alone, is weaker than transaction evidence, because screenshots are easy to manufacture and metadata is easy to alter. Digital evidence corroborates; it rarely carries the whole case. Where electronic records are filed in court proceedings, compliance with the certification requirements applicable to electronic evidence should be considered.

6.4 Tier 4: Institutional and Regulatory Records

These are valuable precisely because they come from third parties and are near-impossible to backdate:

• Certificate of incorporation, partnership deed, Udyam/MSME registration, Shop & Establishment licence
• GST registration certificate (and legacy VAT/CST/service tax registrations)
• Import Export Code (IEC) and customs documents (bills of entry, shipping bills) referencing the brand
• Sector-specific licences: FSSAI licence for food, drug manufacturing/sale licence for pharmaceuticals, BIS certification, AYUSH licence, ISI marking permission, pollution control consents
• Trade association or chamber of commerce membership records
• Copyright registration for the label artwork, if any, which carries a date
• Earlier trade mark applications or registrations for the same mark

Note an important limitation: a company incorporation certificate or a GST registration proves that an entity existed on a date. It does not by itself prove that the mark was used in relation to the goods claimed. It is corroborative context, not proof of trade mark use.

6.5 Tier 5: Third-Party Recognition

• Independent press coverage, product reviews, editorial mentions
• Industry awards and certificates
• Trade directory listings (with the edition/year visible)
• Customer complaints, warranty cards, service records
• Distributor, dealer, stockist, franchise, or licensing agreements bearing the mark, with dates
• Affidavits or certificates from long-standing distributors and dealers confirming when they began stocking the branded product

6.6 Financial Corroboration

• Chartered Accountant’s certificate setting out brand-wise turnover year by year. Where the mark is one of several brands, the CA certificate should apportion turnover to the mark rather than reporting total company revenue.
• Audited financial statements and annual reports, particularly where the mark is named in the directors’ report or the segment/brand disclosures.
• Advertising and promotion expenditure statements, year-wise, certified.

---

7. The Five Tests Applied to User Evidence

Whether the tribunal is the Registrar in an examination or opposition, or a High Court in a rectification or infringement action, the same five tests recur.

7.1 Contemporaneity

The document must have come into existence at the time it purports to relate to. A 2026 affidavit saying “we used the mark in 2012” is assertion; a 2012 invoice is evidence. This is why the earliest exhibit matters far more than the volume of later exhibits. Fifty invoices from 2024 do not prove a 2012 user date.

7.2 Identity of the Mark

The mark shown in the evidence must be, in substance, the mark applied for. Minor variations that do not alter the distinctive character are generally tolerated, but a materially different word, a substantially redesigned device, or use only as part of a larger composite mark will not establish use of the applied-for mark. If the mark has evolved over time, say so in the affidavit and exhibit each iteration with dates, rather than hoping nobody notices.

7.3 Nexus With the Specified Goods or Services

Rule 25(1) requires the statement of use to relate to all the goods or services mentioned in the application. This is where broad specifications backfire. If you claim Class 25 for “clothing, footwear, headgear” but have only ever sold t-shirts, an opponent will argue the user claim is false as to footwear and headgear. Two responses are available: draft a narrower specification, or claim different user dates for different items where the Registry’s system and practice permit, and explain the position clearly in the affidavit.

7.4 Continuity

Section 34 speaks of continuous use. Sporadic or interrupted use weakens the claim materially. Where there were genuine interruptions (a factory fire, a regulatory suspension, the pandemic), explain them in the affidavit with supporting material rather than leaving an unexplained hole.

7.5 Use in the Course of Trade, By the Applicant

Evidence must show genuine commercial use by the applicant or by someone whose use enures to the applicant’s benefit. Two recurring problems:

• Third-party references are not the applicant’s use. In the Delhi High Court’s Princeton decision, the court held that references to a party or its services in newspaper articles not published by that party do not constitute use of the mark by that party for the purposes of Section 34, and that awareness of a foreign institution among Indian students did not amount to the provision of services in India under the mark.
• Group company use requires a legal bridge. Use by a subsidiary, sister concern, or franchisee enures to the applicant only where there is a licence, a registered user entry under Sections 48–49, or a permitted use arrangement within the meaning of Section 2(1)(r) that is pleaded and documented.

Similarly, the Supreme Court’s decision in Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd., (2018) 2 SCC 1, applying the territoriality principle, made clear that reputation abroad is not a substitute for goodwill within India. Foreign applicants relying on transborder reputation must show that the reputation had actually spilled over to Indian consumers by the relevant date, through Indian-facing evidence.

---

8. Registry Practice: Objections, Hearings and Outcomes

8.1 At Examination

The Examination Report may raise, in addition to Section 9 and Section 11 objections, a specific objection that:

• The user affidavit required under Rule 25(2) has not been filed
• The affidavit is unsupported by documents
• The documents do not support the claimed date
• The documents relate to an entity other than the applicant

8.2 The Practical Consequence

Where the objection is not adequately met, the Registry’s practice has been to require the applicant to either substantiate the date or amend the claim. In many instances, the outcome is that the application proceeds on a “proposed to be used” basis, or on a later, supportable date. The applicant retains the filing date, but loses the pre-filing priority claim. This is a real, avoidable loss of rights.

8.3 At Opposition

In opposition proceedings under Section 21 read with the evidence rules (Rules 45, 46 and 47 of the 2017 Rules, dealing respectively with evidence in support of opposition, evidence in support of the application, and evidence in reply), the user claim is invariably tested. The opponent’s standard pleading is that the claimed user date is false, that the applicant is not the proprietor within Section 18(1), and that the application was made in bad faith.

The applicant’s evidence in support of the application must then go well beyond the Rule 25 affidavit. Expect to file:

• A comprehensive affidavit with full exhibit sets
• CA-certified sales and advertising figures
• Third-party corroboration
• Explanations for every gap

8.4 Cross-Examination

The Registrar has power to permit cross-examination of deponents on their affidavits. A deponent who cannot explain how the earliest invoice came to be issued, who the buyer was, or why the invoice serial numbers are non-sequential will damage the case irreparably.

---

9. What the Case Law Establishes

A brief survey of the principles most often applied:

Registration is not proof of use. In Century Traders v. Roshan Lal Duggal, AIR 1978 Del 250, the Delhi High Court held that registration does not establish use; a party asserting prior use must prove it by evidence. Producing a registration certificate to prove a user date is circular and fails.

Proprietorship follows priority in adoption and use. Consolidated Foods Corporation v. Brandon & Co. Pvt. Ltd., AIR 1965 Bom 35, established that priority in adoption and use prevails over priority in registration.

“Use” is broader than sale. Hardie Trading Ltd. v. Addisons Paint & Chemicals Ltd., (2003) 11 SCC 92 — non-physical use, including advertising, can constitute use, subject to bona fides.

Prior use defeats later registration. Neon Laboratories Ltd. v. Medical Technologies Ltd., (2016) 2 SCC 672, and S. Syed Mohideen v. P. Sulochana Bai, (2016) 2 SCC 683.

Territoriality governs transborder claims. Toyota Jidosha v. Prius Auto Industries, (2018) 2 SCC 1.

Inflated user claims are penalised. Indian High Courts have repeatedly refused discretionary relief to plaintiffs whose pleaded user dates were shown to be exaggerated or unsupported. The Delhi High Court’s Division Bench decision in Bodhisattva Charitable Trust v. Mayo Foundation for Medical Education and Research (decided 28 July 2025) is a recent illustration: a claim of prior use that did not withstand scrutiny failed against an earlier registration. Equally, in M/s Products and Ideas (India) Pvt. Ltd. v. Nilkamal Limited (Delhi High Court, 1 July 2025), the court’s assessment of whether continuous prior use had been established was central to vacating an interim injunction.

Continuity is essential. Courts have insisted on actual and continuous use, not isolated or token instances, when applying Section 34.

The consistent thread: the Register records a claim; only evidence establishes a right.

---

10. Correcting or Amending a User Date

This is where Indian procedure is genuinely awkward.

Rule 37 of the Trade Marks Rules, 2017 permits a request for correction or amendment of an application, made on Form TM-M. Section 22 of the Act permits the Registrar to permit correction of any error in, or amendment of, an application, subject to the constraint that an amendment must not substantially alter the identity of the mark or, in practice, expand the scope of the application.

Applying this to user dates:

Moving the date later (a more conservative claim) — i.e., correcting “used since 2010” to “used since 2015,” or to “proposed to be used” — is generally permissible. It narrows the claim and prejudices nobody. It is also the honourable course where the original date cannot be supported, and it is far better done voluntarily than under compulsion in an opposition.

Moving the date earlier (a more expansive claim) — i.e., correcting “used since 2015” to “used since 2010” — is problematic. It enlarges the applicant’s claim to priority after publication and after third parties have assessed the application. Registrars are generally reluctant to allow it, and even where allowed, the amendment invites the obvious question: if you did not know your own date of first use, why should anyone believe the new one?

A further difficulty, noted by commentators, is that the Rules provide a route to amend the application but no clear mechanism to correct the affidavit filed under Rule 25. In practice, a supplementary or corrective affidavit explaining the error, filed with the Form TM-M request, is the pragmatic approach.

The lesson is preventive: get the date right at filing. The best practice is to fix the user date only after locating the earliest surviving document, and to claim the date of that document (or the date it evidences), not the date the proprietor remembers.

---

11. Consequences of a False or Unsupported User Claim

The risks are cumulative and serious:

1. Refusal of the application or its reduction to a “proposed to be used” claim.
2. Success of an opposition under Section 21 on the grounds of non-proprietorship (Section 18) and bad faith.
3. Rectification/cancellation under Section 57, on the basis that the entry was made without sufficient cause or wrongly remains on the Register.
4. Loss of interim relief in litigation. Equitable, discretionary remedies are refused to litigants who approach with unclean hands. A demonstrably false user date is the paradigm case.
5. Adverse costs — Indian commercial courts increasingly impose real costs on parties found to have misled the court.
6. Collateral credibility damage — once one part of a proprietor’s evidence is disbelieved, the rest is read sceptically.
7. Exposure for false swearing. The Rule 25 statement is made on affidavit. Deliberately false statements in a sworn affidavit filed before a tribunal can attract the offences relating to false evidence under the general criminal law (now the Bharatiya Nyaya Sanhita, 2023, which has replaced the corresponding Indian Penal Code provisions). Prosecutions are rare, but the exposure is real and is occasionally invoked as leverage.

---

12. Special Situations

12.1 Use by a Predecessor in Title

Where a sole proprietorship converts to a partnership or a private limited company, or where a business is acquired, the applicant may claim the predecessor’s user date only if the trade mark itself was transferred. Evidence required:

• Deed of assignment specifically transferring the mark (with or without goodwill — say which)
• Business transfer agreement / slump sale agreement
• Succession documents (will, probate, legal heir certificate, family settlement)
• Board resolutions and conversion documents
• Form TM-P/TM-M filings recording assignment where earlier applications exist

State the chain expressly in the affidavit. An unexplained mismatch between the entity on the old invoices and the applicant is the most common evidentiary failure in Indian user claims.

12.2 Group Companies, Licensees and Franchisees

Use by a licensee enures to the proprietor’s benefit only where the proprietor retains control over the quality and character of the goods/services. Produce the licence agreement, quality control provisions, and, ideally, evidence of actual quality supervision. Where possible, record the licensee as a registered user under Sections 48–49.

12.3 Service Marks

For services, Section 2(2)(c) makes advertising and statements about availability of services into use. Relevant evidence includes signage, website launch, brochures, booking/reservation records, service invoices, appointment records, and franchise agreements. The date the service was first offered to the public — not merely planned — is normally the user date.

12.4 Multi-Class Applications

Different classes frequently have different genuine start dates. Claiming a single early date across all classes invites attack on the classes where the date is unsupported. Where the specification spans classes with materially different launch dates, consider separate single-class applications with accurate dates, rather than one multi-class application with an averaged claim.

12.5 Rebranding and Evolving Logos

If the current device mark was adopted in 2022 but its predecessor was used from 2014, do not claim 2014 for the 2022 device. Either claim 2022 for the device and file a separate application for the earlier version, or explain the evolution and claim the date honestly, exhibiting each version.

12.6 Foreign Applicants

A foreign applicant claiming use in India must show Indian use. Exports to India, Indian distributor appointments, Indian advertising, Indian-facing websites, and Indian customs documents matter. Global sales figures do not establish Indian use, and, following Prius, reputation abroad without Indian spillover will not suffice for passing off either.

---

13. A Practical Decision Framework

Before completing the user date field, work through this sequence:

Step 1 — Has the mark actually been used in relation to these goods or services, by this applicant? If no → “Proposed to be Used.”

Step 2 — Can you produce at least one contemporaneous third-party-verifiable document from on or about the intended date? If no → move the date forward to the earliest date you can document, or file as “Proposed to be Used.”

Step 3 — Is the mark in that document the same as the mark being applied for? If no → adjust the date or the mark.

Step 4 — Does the evidence cover the full specification? If no → narrow the specification, or accept exposure on the uncovered items.

Step 5 — Can you demonstrate continuity from that date to today? If there are gaps, prepare the explanation now.

Step 6 — Is the deponent someone with genuine personal knowledge? If no → find someone who has it.

Step 7 — Compile, index, and file the affidavit with the application. Do not defer it.

Golden Rules

• Claim the date you can prove, not the date you remember.
• The earliest exhibit is the case. Everything after it is corroboration.
• When in doubt, “Proposed to be Used” is safe; an unprovable date is not.
• Preserve the founding file. The single cheapest insurance policy in brand protection is a folder containing the first invoice, the first advertisement, the first packaging print bill, and the domain registration receipt.

---

14. Comparative Summary

---

15. Conclusion

The choice between “proposed to be used” and a claimed user date is not a formality; it is the applicant’s first substantive assertion of right, made on oath, on a public record, at the outset of a relationship with the mark that may last decades. Rule 25 of the Trade Marks Rules, 2017 converted what was once a discretionary evidentiary request into a mandatory filing obligation, and in doing so raised the price of carelessness considerably.

The law is generous to both routes. India permits registration without use, so there is no shame and no disadvantage in filing on an intent-to-use basis where use has not begun. India also gives extraordinary weight to prior use, through Section 34 and through a consistent line of Supreme Court authority holding that the first user prevails over the first registrant. What the law does not tolerate is a claim of prior use that cannot be proved.

The practical discipline follows directly. Locate the earliest surviving document before deciding the date. Build the affidavit around that document. File the affidavit with the application, not later. Preserve the founding file for the life of the brand. And when the honest answer is “we haven’t started yet,” write “Proposed to be Used” without embarrassment — because a modest claim that survives scrutiny is worth immeasurably more than an ambitious one that collapses in cross-examination.

---

16. Frequently Asked Questions (FAQs)

1. What exactly is a “user date” in an Indian trade mark application?

A. The user date is the date of first use of the trade mark, entered in Form TM-A, from which the applicant claims to have used the mark in the course of trade in relation to the goods or services listed in the application. It is entered in DD/MM/YYYY format. If the mark has not yet been used, the applicant selects “Proposed to be Used” instead of entering a date.

2. Is it compulsory to have used a trade mark before applying for registration in India?

A. No. Section 18(1) of the Trade Marks Act, 1999 expressly permits an application by a person claiming to be the proprietor of a mark that is “used or proposed to be used” by him. India allows intent-to-use filings, and there is no requirement to file a declaration of actual use before the mark proceeds to registration.

3. What evidence must I file if I claim a user date earlier than my filing date?

A. Rule 25(2) of the Trade Marks Rules, 2017 requires you to file an affidavit testifying to such use, along with supporting documents. Both the affidavit and the documents are mandatory. The affidavit should set out the date of adoption, the date of first use, the manner and extent of use, year-wise sales and advertising figures, territorial spread, and the exhibits relied upon.

4. What evidence must I file if I select “Proposed to be Used”?

A. None at the filing stage. Rule 25(2) is triggered only when use prior to the date of application is claimed. A “proposed to be used” application requires no affidavit, no invoices, and no advertising material.

5. Was the user affidavit always mandatory?

A. No. Under the Trade Marks Rules, 2002, it was within the Registrar’s discretion to call for an affidavit testifying to use. The Trade Marks Rules, 2017 changed this: where prior use is claimed, filing the affidavit with supporting documents became a mandatory requirement rather than a discretionary demand.

6. What happens if I claim a user date but do not file the affidavit?

A. The Registry will ordinarily raise an objection in the Examination Report. If the affidavit and documents are not filed or are inadequate, the practical outcome is that the application may be treated as one for a mark “proposed to be used,” or the claimed date may be disallowed. You keep your filing date, but you lose the pre-filing priority you were claiming.

7. Are invoices compulsory to prove prior use?

A. The Rules use the broad expression “supporting documents” and do not name invoices specifically. However, invoices are the strongest and most conventional form of proof, and in practice their absence is difficult to overcome. Where invoices are unavailable, other contemporaneous evidence — dated advertisements with media bills, printer’s invoices for packaging, regulatory licences, archived website captures, and distributor agreements — can be used, ideally in combination.

8. My earliest invoice is from 2018, but I have been in this business since 2012. Can I claim 2012?

A. Only if you can evidence that the mark was used from 2012 in relation to the goods or services claimed. Being in business since 2012 proves the existence of the business, not use of the mark. If 2018 is the earliest date you can document, claim a date you can support. An unprovable 2012 claim is a liability, not an asset.

9. Can I claim my predecessor’s user date after converting from a proprietorship to a private limited company?

A. Yes, provided the trade mark itself was transferred to the company. You will need to produce the deed of assignment or business transfer agreement, the conversion documents, and board resolutions, and you must expressly plead the chain of title in the affidavit. An unexplained gap between the entity named on the old invoices and the applicant is the most common reason user claims fail.

10. Does use by my sister concern or subsidiary count as my use?

A. Only where there is a proper legal bridge. Use by a licensee enures to the proprietor’s benefit where the proprietor controls the quality and character of the goods or services. Produce the licence agreement with quality-control clauses, and consider recording the licensee as a registered user under Sections 48 and 49 of the Act. Without documentation, the Registry will treat it as third-party use.

11. Can advertising alone, without any sales, establish use?

A. It can, in appropriate circumstances. The Supreme Court in Hardie Trading Ltd. v. Addisons Paint & Chemicals Ltd., (2003) 11 SCC 92, held that “use” is not confined to physical sale of goods and may include non-physical use. For services, Section 2(2)(c) makes statements about the availability, provision or performance of services into use. However, purely token advertising designed to manufacture a user date is unlikely to survive scrutiny.

12. Can I use screenshots and Wayback Machine captures as evidence?

A. Yes, and archived captures are particularly useful because they are generated by an independent third party and carry a verifiable date. Print the captures with the URL and capture-date banner visible. Bear in mind that digital evidence is usually corroborative — it works best alongside transaction documents rather than as a substitute for them.

13. Can I amend my user date after filing?

A. A request can be made under Rule 37 of the Trade Marks Rules, 2017 on Form TM-M, read with Section 22 of the Act. In practice, correcting the date to a later date, or converting the claim to “proposed to be used,” is generally allowed because it narrows the claim. Moving the date earlier is far harder, because it expands the claim after publication and casts doubt on the reliability of the applicant’s own declarations.

14. Is there a way to correct the affidavit itself?

A. The Rules provide a clear mechanism for amending the application but no dedicated procedure for correcting an affidavit already filed under Rule 25. The pragmatic approach adopted in practice is to file a supplementary or corrective affidavit explaining the error, together with the Form TM-M amendment request.

15. What is the risk of claiming a false or exaggerated user date?

A. The risks are cumulative: refusal or restriction of the application; success of an opposition on grounds of non-proprietorship and bad faith; rectification of the Register under Section 57; refusal of interim injunctions in infringement suits on the ground of unclean hands; adverse costs; loss of credibility as to the rest of your evidence; and, because the statement is on oath, potential exposure under the law relating to false evidence.

16. Does registration itself prove that I have used the mark?

A. No. In Century Traders v. Roshan Lal Duggal, AIR 1978 Del 250, the Delhi High Court held that registration does not establish use, and that a party asserting prior use must prove it by evidence. Producing a registration certificate to prove a user date is circular reasoning and will not succeed.

17. If I file as “proposed to be used,” when does the risk of non-use removal begin?

A. Under Section 47(1)(b), a mark may be removed if there has been no bona fide use for a continuous period of five years from the date on which the mark is actually entered in the Register, plus a further three months. The clock therefore starts from the date of registration, not the date of application. Separately, Section 47(1)(a) allows removal where there was no bona fide intention to use at the time of application.

18. What documents should a “proposed to be used” applicant preserve, even though nothing is filed?

A. Board resolutions approving adoption of the mark, brand naming and clearance records, logo commissioning agreements and designer invoices, domain registration receipts, packaging mock-ups, product development files, applications for regulatory approvals such as FSSAI or drug licences, and distributor discussions. These evidence bona fide intention if a Section 47(1)(a) challenge arises later.

19. Does a prior user beat a registered proprietor in India?

A. Generally yes. Section 34 saves the vested rights of a continuous prior user against the registered proprietor. The Supreme Court has repeatedly affirmed this, notably in Neon Laboratories Ltd. v. Medical Technologies Ltd., (2016) 2 SCC 672, and S. Syed Mohideen v. P. Sulochana Bai, (2016) 2 SCC 683, where it held that the rights of a prior user are superior to those of a registered proprietor.

20. Do I need to prove continuous use, or is first use enough?

A. Continuity matters. Section 34 refers to continuous use from a date prior to the registered proprietor’s use or registration. Sporadic or interrupted use significantly weakens the claim. Where there were genuine interruptions, explain them in the affidavit with supporting material rather than leaving an unexplained gap in the documentary record.

21. I sell fifteen items but have invoices for only two of them. Is that a problem?

A. Yes. Rule 25(1) requires the statement of use to relate to all the goods or services mentioned in the application. An opponent will argue that the user claim is false as to the remaining thirteen items. The safer approach is to draft a narrower specification matching your actual trade, or to explain clearly in the affidavit which items carry which start date.

22. Can a foreign company claim a user date in India based on its global sales?

A. No. What must be shown is use in India. Following Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd., (2018) 2 SCC 1, the territoriality principle requires goodwill within India. Relevant evidence includes exports to India, Indian distributor appointments, Indian advertising, India-facing websites, customs documents, and Indian press coverage.

23. Who should swear the user affidavit?

A. A person with genuine personal knowledge of the facts — the sole proprietor, a partner, or a director or duly authorised signatory of the company holding a board resolution. An affidavit sworn by the trade mark attorney or by an employee who joined long after the claimed user date is weak and vulnerable in cross-examination.

24. Does the affidavit need to be notarised?

A. Yes, an affidavit of use should be properly sworn and notarised, with a complete verification clause specifying which paragraphs are true to the deponent’s personal knowledge and which are based on records. Where the deponent is outside India, appropriate consularisation or apostille should be arranged.

25. Can I file separate user dates for different classes in a multi-class application?

A. Different classes often have genuinely different start dates, and claiming one early date across all of them exposes the weaker classes to attack. Where the launch dates differ materially, the cleaner solution is to file separate single-class applications with accurate dates for each, rather than one multi-class application with an averaged or optimistic claim.

26. My logo has changed over the years. Which date do I claim for the new logo?

A. Claim the date the applied-for mark itself was first used. If the current device was adopted in 2022 and an earlier version was used from 2014, claiming 2014 for the 2022 device invites a mark-mismatch objection. Either claim 2022 and file a separate application for the earlier version, or set out the evolution honestly in the affidavit and exhibit each iteration with its own date.

27. Are undated brochures and catalogues useless as evidence?

A. Not necessarily. The most effective way to date them is to produce the printer’s invoice for that print run. This converts an undated brochure into dated evidence and is one of the most under-used techniques in Indian user-evidence practice. The same applies to signage (fabricator’s bill) and advertisements (media release order and invoice).

28. Will a certificate of incorporation or GST registration prove my user date?

A. Not on its own. These prove that the entity existed and was registered on a given date. They do not prove that the mark was used in relation to the goods or services claimed. They are valuable corroborative context because they come from third parties and cannot be backdated, but they must be combined with mark-specific evidence.

29. Does a chartered accountant’s certificate help?

A. Considerably, provided it is brand-specific. A CA certificate setting out year-wise turnover and advertising expenditure attributable to the mark carries real weight. A certificate reporting the company’s total revenue, without apportioning it to the mark, is much less useful where the company sells under several brands.

30. If I am unsure, what is the safest option?

A. “Proposed to be Used.” A claim you cannot support is worse than no claim at all: it costs you the application’s credibility, exposes you in opposition and rectification, and can cost you an injunction years later. Claim the date you can prove with a contemporaneous document, not the date you remember — and if that document does not exist, file on an intent-to-use basis and start preserving the record from day one.

31. Can the Registrar order cross-examination of the deponent?

A. Yes. In contested proceedings the Registrar may permit cross-examination on affidavits filed. This is why the deponent must be someone who can actually explain the earliest invoice, identify the buyer, and account for the surrounding circumstances. A deponent who cannot do so can undo an otherwise good case.

32. What is the single most important document in a prior use claim?

A. The earliest contemporaneous document showing the mark, in relation to the claimed goods or services, in a dealing with a third party — typically the first invoice. Volume of later material does not compensate for its absence. Fifty invoices from last year do not establish a user date from a decade ago.