Refusal on absolute grounds is the collective term in trademark law theory for a category of refusals in which a trademark is refused because the sign itself fails to meet the registration requirements, irrespective of others' prior rights. It corresponds to Articles 10, 11, 12, and 4 of the Trademark Law. Its counterpart concept is refusal on relative grounds.
Specific Types of Absolute Grounds
1. Violation of Prohibited Signs (Article 10)
- Signs identical with or similar to the state name, national flag, national emblem, national anthem, or military flag of the People's Republic of China, and signs identical with or similar to the relevant symbols of foreign states or intergovernmental international organizations (except with consent or where unlikely to mislead);
- Signs identical with or similar to the "Red Cross," "Red Crescent," and similar emblems;
- Signs of ethnic discrimination;
- Deceptive signs likely to mislead the public as to the quality or other characteristics or place of origin of the goods;
- Signs detrimental to socialist morals or customs, or having other adverse effects;
- Place names of administrative divisions at or above the county level, or foreign place names known to the public (except where the place name has another meaning or forms part of a collective or certification trademark).
2. Lack of Distinctive Character (Article 11)
- Signs consisting only of the generic name, device, or model number of the goods;
- Signs merely and directly indicating the quality, principal raw materials, function, intended use, weight, quantity, or other characteristics of the goods;
- Other signs lacking distinctive character.
Proviso: the signs above may be registered as trademarks if they have acquired distinctive character through use and are readily identifiable — the most important avenue of relief among the absolute grounds.
3. Functionality Exclusion of Three-Dimensional Signs (Article 12)
Shapes resulting solely from the nature of the goods themselves, shapes necessary to obtain a technical effect, and shapes that give substantial value to the goods may not be registered.
4. Bad-Faith Applications (Article 4)
Trademark registration applications filed in bad faith without intent to use shall be refused.
Characteristics of Refusals on Absolute Grounds
- Ex officio examination: the examiner examines on his or her own initiative, whether or not a third party raises the issue;
- Cannot be resolved by negotiation: unlike relative grounds, they cannot be resolved through coexistence agreements, assignments, or the like;
- Difficult to remedy: except for distinctiveness, which can be remedied with use evidence, most absolute grounds (especially Article 10) have a very low success rate at review;
- Extended effect: these grounds are also statutory grounds for invalidating a registered trademark.
Response Principles
First precisely identify the specific item triggered, then assess whether that item leaves room for argument or remedy: Article 11 can be overturned with use evidence, Article 10(1)(7) (deceptiveness) occasionally leaves room, while cases involving state symbols or adverse effects should be abandoned decisively, with resources redirected to an amended new application.
How these concepts apply in a specific case still involves detailed differences; you may consult a registered trademark agent on MyTMBee for case-specific analysis.