User Affidavit’ in Trademarks: Why ‘Proposed to be Used

In today’s world of trademarks, there’s a quiet but dangerous assumption many entrepreneurs make that by filing trademark application I have secured my trademark. Unfortunately, that’s not always true especially, when your application is based on “proposed to be used.”

While filing on a proposed use basis gives you an early foot in the door, it comes with hidden risks that can surface months or even years later. Trademark offices and courts don’t just want to see a filed application; they want proof that your mark is being used in commerce. This is where the ‘User Affidavit’ becomes one of the most critical documents in your trademark journey.

A well-crafted user affidavit is not just a simple declaration, but it serves as worn evidence of genuine commercial use, which is backed by invoices, advertisements, packaging, website screenshots, sales records, and customer feedback. When a trademark is challenged, opposed, or comes up for renewal, this affidavit can make or break your rights.

The entrepreneurs must note that relying solely on “proposed to be used” can leave their brand vulnerable. Many applicants discover too late that their registration is fragile without solid evidence of use.

In this blog we shall walk you out through what makes a User Affidavit strong and reliable, the common pitfalls applicants face, why “proposed to be used” applications often backfire, and practical steps you can take to build solid evidence from day one.

Table of Contents

What Is a Trademark User Affidavit?

A Trademark User Affidavit is a sworn statement submitted by the brand owner or their authorised signatory that confirms the trademark is being genuinely used in for commercial purpose.

Entrepreneurs can think of it as their brand’s “proof of life.” The User Affidavit act as a proof that the mark is actively being used in the marketplace.

User Affidavit typically includes details such as the date of first use, the specific goods or services for which the mark is used and supporting evidence like invoices, labels, packaging, advertisements, website printouts or sales records.

In legal terms, its primary purpose is to establish “actual use” before the Trade Marks Registry or the courts.

The user affidavit serves two important functions:

It prevents trademark warehousing, i.e., the practice of hoarding marks without genuine intention of undertaking a commercial activity.
It strengthens brand’s position when someone challenges your rights.

A well drafted User Affidavit backed by credible and actual evidence can make the difference between a trademark that survives scrutiny and one that gets removed from the register.

Understanding “Proposed to Be Used” Applications under the Trade Marks Act, 1999

Under the Trade Marks Act, 1999, the entrepreneurs are allowed to file on a “proposed to be used” basis, i.e., they do not need to start using your brand name before filing a trademark application. This practice ensures that entrepreneurs can reserve their trademark rights even before you launch the product or service in the market.

There is a practical reason behind it and registry is of the view that many businesses, especially startups and new ventures, want to secure their brand name early without waiting for actual commercial use. The application gets a filing date that becomes crucial for establishing priority over later applicants. However, this is not a free pass. The Act gives you three years from the date of filing to commence genuine use of the mark in India and trademark registry can ask the entrepreneurs to submit evidence of such use.

Entrepreneurs need to be aware of an important caveat that ‘proposed to be used’ application can be common in practice, but they create only provisional rights. The real strength of your trademark protection kicks in only when you back it up with actual, documented use.

The Hidden Risks of Filing Without Actual Use

A “proposed to be used” filing only gives you provisional rights until you actually start using the mark in the market.
You have just three years from the filing date to begin genuine commercial use under the Trade Marks Act, 1999.
Failing to use the mark within three years can lead to your application being treated as abandoned by the Registry.
Opponents can challenge your application more effectively when you have no evidence of actual use to show.
Even after registration, the mark remains vulnerable to cancellation if it is not used for five continuous years.
Without real user evidence, enforcing your trademark against infringers or counterfeiters becomes extremely difficult in court.
Filing without use opens the door for brand squatters and competitors to adopt similar marks in the meantime.
At renewal stage, the Registry may ask for proof of use and remove the mark if you cannot provide it.
All the money and effort spent on filing can go to waste if genuine use is never established within the required time.
Relying only on paper rights without actual use can seriously damage your brand’s legal strength and credibility later.

Top Reasons the Registry Rejects User Affidavits

The affidavit is not properly sworn or lacks the required stamp paper and notary attestation.
The mark shown in the evidence differs substantially from the mark as applied for or registered.
Supporting documents do not clearly display the trademark or link it to the claimed goods/services.
Evidence submitted is only advertising material without proof of actual sales or commercial transactions.
The volume of use is too small or sporadic to qualify as genuine commercial use.
Documents are dated after the relevant cut-off period or fail to prove use within the prescribed time.
Use is shown only outside India with no clear connection to Indian trade or customers.
The affidavit contains incorrect or exaggerated claims about the date or extent of use.
Evidence appears altered, backdated, or fabricated, raising doubts about authenticity.
The user affidavit is filed by a person without proper authorisation from the brand owner.

Consequences of Incorrect or False User Claims in user affidavit

The Trade Marks Registry may outright reject the User Affidavit, delaying or derailing your application or renewal.
Your trademark application can be treated as abandoned if genuine use is not proved within the three-year window.
Even after registration, the mark can be removed from the Register on grounds of non-use or false declaration.
False statements in the affidavit can lead to opposition or rectification proceedings filed by third parties.
Courts take a serious view of false affidavits and may impose heavy costs on the brand owner.
In extreme cases, filing a false User Affidavit can amount to perjury, attracting criminal liability under the Indian Penal Code.
The brand owner may lose the right to sue for infringement if the registration is cancelled due to false claims.
Repeated false declarations can damage the credibility of the company before the Registry and courts.

When You Should Not Use “Proposed to Be Used” in user affidavit

When you have already started selling the product or service in India.
When your business is fully operational and generating regular sales.
When you need strong, enforceable rights from day one.
When you want to avoid the three-year use deadline pressure.
When you plan to file evidence of use immediately with the application.
When your brand is already well-known in the market.
When you are licensing the mark to others or entering franchise agreements.
When you want to reduce the risk of opposition or cancellation later.

Conclusion: Why Honest User Claims Protect Your Brand in Long-Term

Being an entrepreneur, you must be aware of intellectual property rights and their significance. Every detail in trademark application must be verified before filing the application. The stage of your business can vary depending upon the age of the business and that decides the usage of trademark for commercial purpose.

If you are not sure of legal complexities of trademark application, it is highly recommended to engage a registered trademark agent who can guide you through the legal provision and advise the best possibilities for your business.

At My Legal Business LLP, we help businesses secure and defend their brand rights effectively. From drafting airtight user affidavits to strategizing long-term trademark protection, we ensure your brand stays safe and enforceable.

If you’re serious about safeguarding your trademark the right way, feel free to reach out. We will get your trademark registered hassle free.