What to Do When Your China Trademark Application Is Refused: Review, Division or Refiling
A refusal notice from the China National Intellectual Property Administration (CNIPA) is not the end of the application. The applicant has 15 days from receipt to decide what to do, and the best option depends on why the mark was refused and on how much the brand is already worth to the business.
First, read the ground of refusal
Refusals fall into two groups. Absolute grounds concern the mark itself: lack of distinctiveness, a term that merely describes the goods, or a sign considered to have an adverse social influence. Relative grounds concern conflict with an earlier mark, which the examiner will cite by registration number. The two groups call for completely different responses.
Option one: apply for review
A review before the Trademark Review and Adjudication Department can be requested within 15 days. It suits cases where the similarity finding is debatable, where the mark has acquired distinctiveness through use, or where the cited mark can be cleared. Review currently takes about 6 to 9 months. During that time the applicant can file a non-use cancellation (three consecutive years of non-use) or an invalidation against the cited mark, so that the obstacle disappears before the review is decided.
Option two: divide the application
When the refusal covers only some of the goods, the application can be divided at the same time as the review is filed. The accepted goods move on to publication and registration while the refused goods stay in the review. For companies that need a certificate quickly, this is the most practical route.
Option three: refile
Where the mark is weak or the cited mark is stable and cannot be removed, a new application with a modified sign or a redrawn specification that avoids the conflicting sub-classes is usually cheaper than a review with poor prospects. The new filing date is later, so a clearance search should be run again before refiling.
Option four: negotiate
A letter of consent from the owner of the cited mark, or an assignment or licence, can be submitted in the review. CNIPA accepts consent letters case by case, and where the marks are highly similar a consent letter alone may not be enough.
How to decide
- Can the cited mark be cleared? If yes, file the review together with a non-use cancellation or invalidation.
- Does the refusal cover only part of the goods? If yes, file the review and divide the application.
- Is the mark worth defending? A brand already in use with high rebranding costs justifies a review; a new brand can simply be redesigned.
- Whatever the choice, the 15-day deadline cannot be extended. Missing it leaves refiling as the only option.
Documents needed for a review
The refusal notice, a signed power of attorney, the review request with grounds, and evidence: use of the mark in China, coexistence in other jurisdictions, differences in goods and trade channels, and any consent or clearance documents.
J&C Intellectual Property Agency (JCIPO), founded in 2008, is a CNIPA-recorded trademark agency and a member of the China Trademark Association. We handle refusal reviews, oppositions, invalidations and non-use cancellations for foreign and Chinese applicants, see our trademark services. Patent filings are handled through an affiliated patent agency.
