Trademark Opposition Evidence: Rules 45, 46 and 47 Explained

Two companies claim the same word. One files three hundred pages of invoices, CA-certified turnover figures and dated advertising. The other files a lawyer's assertions on plain paper. The Registrar's order almost writes itself.

Trademark oppositions in India are decided on affidavit evidence, and the evidence stage runs on three rules of the Trade Marks Rules, 2017: Rule 45 for the opponent, Rule 46 for the applicant, and Rule 47 for the opponent's reply. Each carries a strict deadline, and two of them carry a deemed-abandonment trap.

This guide walks through each round, the affidavit format the Registry expects, and the difference between evidence that wins and paperwork that merely exists.

The three rounds at a glance

Once the notice of opposition and counter-statement are exchanged, the file enters evidence. The sequence is fixed and alternates between the parties.

• Rule 45, opponent's evidence. Within 2 months of receiving the counter-statement, the opponent files evidence supporting the opposition by affidavit, or a letter stating reliance on the notice of opposition. Doing neither means the opposition is deemed abandoned.
• Rule 46, applicant's evidence. Within 2 months of receiving the opponent's evidence or intimation of reliance, the applicant files evidence supporting the application, or a letter relying on the counter-statement. Doing neither means the application is deemed abandoned.
• Rule 47, evidence in reply. Within 1 month, the opponent may file reply evidence, strictly confined to answering the applicant's evidence. No new grounds, no fresh case.

After Rule 47 closes, further evidence comes in only with the Registrar's leave under Rule 48, which is discretionary and never guaranteed. Then the matter is set down for hearing.

Pleadings frame the fight. Affidavits decide it.

Deadlines are rigid, and both sides can lose by default

The 2017 Rules tightened the evidence stage deliberately. The generous extensions available under the old rules are gone, and the deemed-abandonment consequence does the enforcement.

An opponent who files a notice of opposition and then goes silent loses the opposition without any decision on merits. An applicant who files a counter-statement and then ignores Rule 46 loses the application the same way. Both happen constantly, usually because nobody diarised the service date.

Note what starts each clock: receipt. The opponent's Rule 45 period runs from receiving the counter-statement. Your Rule 46 period runs from receiving their evidence or their reliance letter. Log every service date the day it happens, because you will be computing deadlines from it under oath-level pressure later.

In the evidence stage, the calendar eliminates more parties than the Registrar does.

The letter of reliance: useful, and dangerous

Both Rule 45 and Rule 46 allow a party to skip filing fresh evidence and instead write to the Registrar relying on what they already pleaded. It keeps the proceeding alive and costs almost nothing.

But a pleading is not proof. A notice of opposition or counter-statement is a lawyer's narrative; an affidavit is sworn testimony with exhibits. A party that relies on pleadings alone walks into the hearing with assertions against the other side's documents.

Use a reliance letter tactically, when the burden sits squarely on the other side or your registration certificate itself does the talking. Use it as a cost-saving default and you will feel the gap at the hearing.

Affidavit format: what the Registry expects

Section 129 of the Trade Marks Act allows evidence before the Registrar to be given by affidavit. In practice the Registry expects a specific shape.

• A competent deponent. A director, partner, proprietor or authorised officer who can swear to the facts from records, with the source of knowledge stated.
• Proper attestation. Sworn before a notary or oath commissioner, with date, place and stamp.
• Numbered exhibits. Every document marked as an exhibit, referenced in the body of the affidavit, and legible. An invoice mentioned but not annexed proves nothing.
• Service on the other side. Evidence goes to the Registry and to the opposing party. Keep proof of both.

Structure the affidavit like a story with receipts: adoption of the mark, first use, growth year by year, reputation, and then the specific facts answering the other side's case.

What strong evidence actually looks like

Registrars weigh documents, not adjectives. The affidavits that win oppositions share the same spine.

• The first invoice. The single most valuable document in a prior-use fight. Dated, in the mark's name, with the goods identified.
• Year-wise sales turnover. Certified by a chartered accountant, broken down by year from first use. Unverified figures in a lawyer's letter carry little weight.
• Advertising spend and material. CA-certified promotion expenses plus dated specimens: packaging, hoardings, newspaper ads, digital campaigns with dates visible.
• Third-party recognition. Press coverage, awards, trade directory listings, distributor agreements. Independent sources beat self-generated ones.
• Registrations and applications. Domestic and foreign certificates, especially for marks claimed to be reputed. For marks claiming wide reputation, the bar described in our guide to well-known trademarks under Section 11 shows how much evidence that claim really needs.

Weak evidence is just as recognisable: undated screenshots, social media follower counts with no dates, turnover figures no accountant signed, and Wikipedia-grade printouts. Filing weak evidence is often worse than a reliance letter, because it advertises that this was the best you had.

One CA-certified sales chart outweighs twenty paragraphs of adjectives.

Rule 47: reply evidence is a scalpel, not a second chance

The opponent's reply round exists only to answer what the applicant filed. If the applicant's affidavit produced a first invoice from 2015, the reply can attack that invoice's authenticity or context. It cannot introduce a new ground of opposition or evidence that belonged in Rule 45.

Registrars do police this. Material that travels beyond "matters strictly in reply" risks being ignored at the hearing, and it signals that the opening evidence was incomplete.

For applicants, Rule 47 is a reason to file your best case under Rule 46 rather than holding anything back. There is no second applicant round; what you file then is what you argue later.

After the evidence closes

The Registrar notifies the parties and fixes a hearing under Rule 50. Written submissions and the affidavit record carry most of the weight; the hearing tests them. Orders typically issue weeks to months later, allowing or refusing the application, and either side can carry the matter further in appeal.

If you are heading into a hearing, treat it like litigation, because it is. Our opposition practice and IP litigation team run these end to end, from evidence strategy to final arguments.

And if you are still choosing a brand, the entire multi-year machinery above is avoidable: a clearance search before trademark registration costs a fraction of one evidence round.

Oppositions are won in the two months you spend building the affidavit, not the two hours at the hearing.

Diarise every service date, decide each round deliberately, and put documents, not adjectives, before the Registrar. The party with the better-organised paper trail wins far more often than the party with the louder pleading.