Refusal on relative grounds refers to cases in which a trademark application is refused because it conflicts with another person's prior rights, irrespective of whether the sign itself is eligible. Its core legal bases are Articles 30 and 31 of the Trademark Law. It is the most numerous category of refusal in practice and the one with the greatest room for response.
Constituent Elements
A refusal on relative grounds requires two elements to be satisfied simultaneously:
- Identical or similar marks: the applied trademark is identical with or similar to the cited trademark in sound, appearance, meaning, or overall impression, to a degree likely to confuse or mislead the relevant public;
- Identical or similar goods or services: the designated goods/services of the two parties are identical or similar under the Classification of Similar Goods and Services, assessed together with factors such as function, purpose, production sector, sales channels, and consumer groups.
Neither element can be missing — these are the two statutory entry points for responding at review.
Legal Bases
- Article 30: where a trademark is identical with or similar to another person's trademark already registered or preliminarily approved on the same or similar goods, the application shall be refused;
- Article 31: where two or more applicants file on the same day, the mark used earlier is preliminarily approved; where a later application conflicts with a prior-filed trademark, the later one is refused.
Differences from Refusals on Absolute Grounds
| Dimension | Relative Grounds | Absolute Grounds |
|---|---|---|
| Cause of refusal | Conflict with another's prior trademark | The sign itself is not registrable |
| Governing provisions | Articles 30, 31 | Articles 10, 11, 12, 4 |
| Resolvable by negotiation | Yes (coexistence, assignment) | No |
| Review success rate | Relatively high | Generally low |
| Possibility of removing the obstacle | Cited mark may be cancelled for non-use, invalidated, or lapse | Generally none |
Response Paths
- Argue head-on: demonstrate that the marks are not similar, the goods are not similar, and confusion is unlikely;
- Clear the obstacle: file a non-use cancellation (registration of 3+ years without use) or invalidation against the cited trademark, or negotiate an assignment or sign a coexistence agreement;
- Wait for a status change: where the cited trademark expires without renewal or is cancelled, the obstacle disappears automatically, and suspension of the review may be requested in the meantime;
- Supporting use evidence: evidence that the applied trademark has formed a stable market order through extensive use and will not cause confusion.
Practical Tips
The key to responding to a refusal on relative grounds is to "know yourself and know your counterpart": make the comparative analysis of the two marks and goods thorough, and at the same time get a clear picture of the cited trademark's rights status and its owner. Many seemingly hopeless similarity refusals dissolve once the cited trademark is cancelled for non-use or coexistence is agreed.
The practical judgment behind this concept must be combined with the individual case; before acting, you may book a targeted analysis with a registered trademark agent on MyTMBee.