The Trademark Refusal Notice is the official examination document served by CNIPA on the applicant when it makes a refusal decision after substantive examination. It is both the vehicle of the refusal decision and the document from which the fifteen-day review period under Article 34 of the Trademark Law runs. The day you receive it, the clock starts.
Two Forms of the Document
- Trademark Refusal Notice: all designated goods or service items of the application are refused;
- Notification of Partial Refusal of Trademark Registration Application: some items are refused while others are preliminary approved; in this case the applicant may also choose a division application (Article 22 of the Implementing Regulations).
Absolute Grounds and Relative Grounds
Refusal grounds fall into two categories by nature, with different remedial thinking and difficulty.
Absolute grounds mean the sign itself does not meet the conditions for registration, regardless of anyone's prior registration:
- Violation of Article 10 of the Trademark Law (signs that may not be used as trademarks, such as signs identical or similar to state names or national flags, or signs that are deceptive or have adverse effects);
- Violation of Article 11 of the Trademark Law (signs consisting solely of the generic name, device, or model of the goods, or merely directly indicating quality, main raw materials, function, intended purpose, or other characteristics, lacking distinctive features);
- Violation of Article 12 of the Trademark Law (three-dimensional signs consisting solely of shapes resulting from the nature of the goods themselves, etc.);
- Violation of Article 4 of the Trademark Law (bad-faith trademark applications not intended for use), among others.
Relative grounds mean conflicts with others' prior rights:
- Identity or similarity to a registered or preliminary approved trademark on identical or similar goods (Article 30);
- Conflict with prior applications (Article 31);
- Harm to another's existing prior rights, or preemptive registration by unfair means of another's trademark already used and having a certain influence (Article 32);
- Involvement of well-known trademarks (Article 13), squatting by agents (Article 15), geographical indications (Article 16), among others.
The handling of the two categories differs: absolute grounds require persuading the examiner that the sign itself is registrable, often needing evidence of long-term use to prove acquired distinctiveness; relative grounds often require first clearing the obstacle of the cited trademark.
Key Information in the Notice
- Application number, trademark representation, applicant name, and filing date;
- Scope of refusal: full refusal, or the specific refused goods or service items;
- Grounds of refusal and the legal provisions invoked;
- For refusals on relative grounds, information on the cited trademarks: registration or application number, representation, designated goods, and rights holder;
- Remedy notice: a review application may be filed within fifteen days of receipt.
How the Dispatch Date and Receipt Date Are Computed
The period runs from the "date of receipt," and the service rules directly determine the deadline. Under Article 10 of the Implementing Regulations:
- Service by mail: the date of the postmark on which the party received the document governs; where the postmark date is illegible or there is no postmark, service is deemed to occur fifteen days after the document was dispatched, unless the party can prove the actual date of receipt;
- Direct delivery: the date of delivery governs;
- Service by electronic data message: service is deemed to occur fifteen days after the document was dispatched, unless the party can prove the date the document entered its electronic system;
- Service by announcement: where none of the above methods can achieve service, service is deemed to occur thirty days after the announcement is published.
One more point must be noted: where a party has engaged a trademark agency, service of documents on the agency is deemed service on the party (paragraph 1 of the same article). The actual deadline must therefore be verified against the date the agency received the document.
As to period computation: the first day of the period is not counted; where the period is computed in years or months, the corresponding day of the last month is the expiry day—if that month has no corresponding day, the last day of that month is the expiry day; where the expiry day falls on a holiday, it extends to the first working day after the holiday (Article 12 of the Implementing Regulations, with holidays including Saturdays and Sundays).
Practical Points and Common Pitfalls
- Record the receipt date on the day of receipt, count back to the deadline, and enter it into your internal to-do list;
- Dismantle the grounds item by item: first distinguish absolute grounds from relative grounds, then decide between review, refiling, or a dual track;
- For refusals on relative grounds, immediately check the status of the cited trademarks: whether they are valid, whether they have been continuously unused, and whether cancellation or invalidation is possible;
- The notice is a mandatory attachment to the review application—back up the electronic copy;
- Pitfall: shelving the notice as a "final result," or computing the deadline from the dispatch date while ignoring the service rule based on the receipt postmark—this easily produces a miscalculation.
How these concepts apply in specific cases still involves detailed differences; you may consult a registered agent via MyTMBee for case-specific analysis.