Failing a refusal review does not mean the trademark is dead. Two paths remain: judicial relief (administrative litigation) and strategic adjustment (refiling or rebranding). Which path to choose depends on the value of the trademark, the reason for the failure, and your budget.
Path One: Administrative Litigation
If you disagree with the review decision, you may file an administrative lawsuit with the Beijing Intellectual Property Court within 30 days of receiving the decision, naming the CNIPA as defendant:
- First instance: exclusive jurisdiction of the Beijing Intellectual Property Court;
- Second instance: appeals against the first-instance judgment go to the Beijing High People's Court;
- Retrial: a retrial may be applied for where statutory conditions are met.
The keys to overturning a decision in litigation usually lie in:
- An obvious error in the review decision's assessment of similarity of marks or goods;
- A change in the status of the cited trademark during the litigation (cancelled for non-use, invalidated, or lapsed);
- Submission of critical new evidence not filed at the review stage.
Note: administrative litigation is time-consuming (first instance usually takes over a year) and expensive; it suits cases where the trademark is highly valuable and substantive grounds for argument exist.
Path Two: Strategic Adjustment
- Refiling: after analyzing why the review failed, amend the trademark elements or adjust the list of goods and refile. If the citation obstacle has been removed (e.g., the cited trademark was cancelled for non-use), the new application may proceed smoothly;
- Amending the trademark: add distinctive elements or change the distinctive identifying portion, then refile;
- Assignment or coexistence: purchase the cited trademark outright or reach a coexistence agreement, then refile;
- Full rebrand: if continued investment offers poor value, decisively adopt a new brand — cutting losses is sometimes the optimal solution.
Decision Framework
Think through three questions: how much is the trademark worth (the ceiling on further investment), can the root cause of the failure be eliminated (if not, do not try again), and can you afford the time (litigation takes two to three years). Choose the path only after weighing all three.
In similar situations, it is advisable to first consult a registered trademark agent on MyTMBee to assess whether a refusal review evaluation is needed before deciding on the next step.