Trademark refusal refers to the examination decision by the Trademark Office of the CNIPA, after substantive examination of a trademark registration application, finding that the application does not meet the statutory registration requirements and refusing the application and withholding publication under the Trademark Law. A refusal is not a final conclusion — the applicant may seek relief through the refusal review procedure.
Legal Basis and Procedural Position
- Article 30 of the Trademark Law: where a trademark applied for registration does not comply with the relevant provisions of the Law, or is identical with or similar to another person's trademark already registered or preliminarily approved on the same or similar goods, the Trademark Office shall refuse the application and withhold publication;
- Article 34 of the Trademark Law: an applicant who disagrees with the refusal may apply for review within 15 days of receiving the notice.
A refusal occurs at the substantive examination stage, after formality examination (acceptance) and before publication of preliminary approval.
Classification of Refusal Grounds
Absolute Grounds
The sign itself is not registrable, irrespective of others' prior rights:
- Violation of the Article 10 prohibited signs (state symbols, deceptiveness, adverse effects, place names, etc.);
- Lack of the distinctive character required by Article 11 (generic names, directly descriptive signs, etc.);
- Three-dimensional signs falling within the Article 12 functionality exclusion;
- Bad-faith applications without intent to use under Article 4.
Relative Grounds
Conflicts with prior rights: the mark is identical with or similar to another person's prior-filed, registered, or preliminarily approved trademark on the same or similar goods (Articles 30 and 31). The examiner will identify the cited trademarks in the notice.
Forms of Refusal
- Total refusal: all goods/services items in the application are refused;
- Partial refusal: only some items are refused, while the rest proceed to publication of preliminary approval as normal.
Remedies After a Refusal
- Refusal review: apply to the CNIPA within 15 days, preserving the original filing date;
- Administrative litigation: if you disagree with the review decision, file suit with the Beijing Intellectual Property Court within 30 days, with an appeal available to the Beijing High People's Court;
- Strategic abandonment: refile, amend the trademark, or rebrand.
Practical Significance
Refusal is the most common setback in the trademark registration process, and statistics show that a considerable proportion of applications encounter total or partial refusal. It is important to correctly understand the remediability of refusals: numerous cases exist of refusals on relative grounds being overturned at review, and distinctiveness issues among absolute grounds can also be remedied with use evidence. Rational analysis and timely action upon receiving a refusal notice are far wiser than passive abandonment or a blind review.
The application of related concepts in practice involves detailed differences; before acting, you may consult a registered trademark agent on MyTMBee for targeted analysis.