Trademark User Affidavit: Proving Prior Use in India

Two businesses fought over the same brand name before the Registrar. One had filed its application in 2019. The other filed only in 2023 — but had been selling under the name since 2014, and had the invoices to prove it. The later filer walked away with the mark.

India is first-to-file, but the Trade Marks Act, 1999 leaves one powerful exception: honest, continuous prior use. Section 34 protects a prior user against even a registered proprietor. The gateway to that protection is a single field on Form TM-A — the date of first use — and the document that backs it up: the user affidavit.

This guide covers what a user affidavit is, what evidence actually proves prior use, and why the date you claim can decide an opposition years later.

One field on TM-A, two very different claims

When you file a trademark application in India, Form TM-A forces a choice. You either state a specific date of first use — day, month and year — or you tick "proposed to be used".

The two claims mean different things:

• User date claimed. You assert the mark has been in commercial use for the goods or services in the application since that date. The Trade Marks Rules, 2017 require this claim to be supported by an affidavit of use with documentary evidence.
• Proposed to be used. You assert nothing about past use. The application rests purely on your filing date, and no affidavit is needed.

The user date is not decoration. It becomes part of the register entry, it is visible to every opponent who searches your mark, and it fixes the story you must defend in every future dispute.

The date you type into TM-A is a promise. Sooner or later, someone will ask you to keep it.

The user affidavit: what the Rules demand

Under the Trade Marks Rules, 2017, an application claiming use before the filing date must be supported by an affidavit testifying to that use, along with supporting documents. Skip it, and the Registry raises a deficiency or the claim simply doesn't count.

A properly drafted user affidavit contains:

• The deponent's authority. The proprietor, partner or an authorised officer of the company swears the affidavit, stating their position and knowledge of the facts.
• The mark and the goods. The exact mark applied for, and the specific goods or services it has been used on — matching the application, not a broader wishlist.
• The date and continuity of use. The date of first use and a statement that use has been continuous since, or an honest explanation of any gaps.
• Exhibited evidence. Documents annexed and referenced by exhibit number — the affidavit narrates, the exhibits prove.
• Notarisation. Sworn before a notary or oath commissioner. An unsigned, unsworn statement is just a letter.

The affidavit is filed with TM-A or in response to an examination objection. Either way, it is the claim's foundation — and it is only as strong as the paper behind it.

Evidence that proves prior use — and evidence that fails

The Registrar and opposition boards see thousands of use claims. The evidence that survives scrutiny shares one trait: it is dated, third-party-verifiable, and shows the mark actually facing customers.

Strong evidence, roughly in order of weight:

• Invoices bearing the mark. The gold standard. Sales invoices showing the brand name, dated across the claimed period, ideally from the earliest claimed year to today.
• GST and tax records. GST registration in the brand name, GST returns, and older VAT or excise records tie the brand to real, declared turnover.
• Advertisements with dates. Newspaper ads, magazine placements, hoarding contracts, Google or Meta ad receipts — anything showing marketing spend on the mark with verifiable dates.
• Packaging and print records. Purchase orders and invoices from printers and packaging vendors, with the artwork, prove the mark was on goods — not just in a founder's head.
• Domain and website records. Domain registration dates and archived web pages showing the mark in commercial use.
• CA-certified sales figures. A chartered accountant's certificate of year-wise sales and promotional expenditure under the mark, which the Registry treats with real respect.
• Press, awards and listings. Media coverage, industry awards, marketplace seller records — anything independent that mentions the brand with a date.

Evidence that routinely fails: undated packaging artwork, screenshots without timestamps, self-serving declarations with no documents, and WhatsApp forwards. If a document could have been produced last night, it proves nothing about 2014.

The oldest invoice in your drawer can outweigh the newest certificate in your rival's frame.

Why the user date decides oppositions

The user date matters most when two parties collide. In trademark opposition proceedings, both sides file evidence by affidavit, and the tribunal compares claims: who used first, who filed first, whose story holds up.

Three ways the date changes outcomes:

1. Section 34 shields the prior user. A registered proprietor cannot interfere with a party who has continuously used an identical or similar mark for the same goods from a date before the proprietor's use or registration. Your proven user date is the shield.
2. Earlier use attacks later applications. As an opponent, proving use before the applicant's filing date underpins objections based on your earlier rights and reputation. The full mechanics are covered in our guide to the trademark opposition process in India.
3. Prior use is the backbone of passing off. Even without any registration, reputation built through prior use supports a passing off action — the doctrine explored in our piece on passing off and the Jif Lemon case.

In each scenario, the user affidavit filed years earlier is either your strongest exhibit or your biggest liability. A date you can prove wins cases. A date you guessed loses them.

The temptation to inflate the date — and what it costs

Founders routinely want to claim the day the name was first scribbled in a notebook, or the company's incorporation date, or "since our family business started in 1987". Resist it.

An inflated user date fails in predictable ways:

• The evidence gap shows. If you claim 2014 but your earliest invoice is 2019, every tribunal will notice. The gap doesn't just trim your claim to 2019 — it taints the credibility of everything else you filed.
• Opponents attack the affidavit first. A demonstrably false sworn statement invites allegations of false evidence and can sink the application independent of the merits.
• The register entry follows you. The claimed date sits on the public record. Rectification petitions years later can resurrect it, long after the founder who guessed it has left.

Claim the earliest date you can prove with documents — not the earliest date you remember. Trademark use means use as a brand in the course of trade for the applied-for goods, not internal brainstorming or a dormant company name.

Claim the date your documents prove, not the date your memory prefers.

When "proposed to be used" is the smarter claim

Not every application should claim prior use. "Proposed to be used" is the honest and often strategic choice when:

• The brand is new. Launching next quarter? File as proposed to be used, before launch. India is first-to-file — the early filing date protects you better than a thin use claim ever could.
• Your use is marginal. A single pilot sale or a soft launch produces weak evidence. A proposed-to-be-used filing avoids swearing to a claim you can barely support.
• The evidence sits with someone else. If a licensee or group company made the sales, whose use it legally counts as needs untangling before anyone swears an affidavit.

There is no penalty for the proposed-to-be-used route. Use that begins after filing strengthens the mark all the same, and the registration certificate you eventually earn is identical. Before filing either way, run a trademark search so you know whose prior rights you might be walking into.

First-to-file wins the race. Prior use, properly proven, rewrites the result.

The user date is the most under-estimated field on TM-A. Claim it only when your documents support it, back it with a properly sworn affidavit, and keep building the evidence file — because in Indian trademark disputes, the paper trail is the brand's real biography.