Responding to the rejection of a trademark application through rejection review

(1) How to deal with the absolute reasons for rejection of the Trademark Office during the rejection review

The absolute reasons for rejection of the Trademark Office It is based on the provisions of Articles 10, 11 and 12 of the Trademark Law. Generally speaking, if the trademark application violates social order and good customs or lacks distinctiveness, the trademark application will be rejected by the Trademark Office.

In a rejection review involving absolute grounds for rejection, the grounds for review submitted by the trademark registration applicant to the Trademark Review and Adjudication Board usually include a direct argument part and an indirect argument part.

1. Direct Argument Part

When hearing a rejection review application involving absolute grounds for rejection, the Trademark Review and Adjudication Board will usually follow the "Trademark Examination and Specific review principles in the Review Standards. If the applicant can attribute the circumstances of the trademark application to exceptions to the examination principles stipulated in the "Trademark Examination and Trial Standards", the trademark application is expected to be approved for registration. Therefore, the direct argument part is often the argument that the situation of applying for a trademark is an exception to the review principle.

2. Indirect argument

Article 11, paragraph 2, of the Trademark Law stipulates: If the marks listed in the preceding paragraph have acquired distinctive features through use and are easy to identify, they may be used as trademarks. Trademark registration. ?Therefore, if the Trademark Office rejects a trademark registration application based on the absolute grounds for rejection stipulated in Article 11, Paragraph 1 of the Trademark Law, the applicant can provide evidence to prove that it has not owned the trademark for a long time before the date of application for registration of the trademark. A distinctive mark is used as a trademark on one's own goods. A strong correspondence has been established between the applied trademark and the goods used. The relevant public believes that the mark refers to the user's goods. The mark is in fact has played a role in distinguishing the source of goods. Applicants for trademark registration may refer to the evidence of well-known trademarks and request to collect evidence to prove the aforementioned facts.

(2) How to deal with the Trademark Office’s relative reasons for rejection in the rejection review

The Trademark Office’s relative reasons for rejection are based on the provisions of Articles 30 and 31 of the Trademark Law . Generally speaking, if the applied trademark and others’ previously cited trademarks (including registered trademarks, trademarks in preliminary examination and announcement, and trademarks in registration applications) constitute the same or similar trademarks on the same or similar goods, the applied trademark will be The Trademark Office rejected it. In a rejection review involving relative reasons for rejection, the reasons for review proposed by the trademark registration applicant to the Trademark Review and Adjudication Board usually include a direct argument part and an indirect argument part.

1. Direct Argument Part

How to demonstrate that the applied trademark and someone else’s previously cited trademark do not constitute the same or similar trademark on the same or similar goods, which is the key to a successful rejection review. location. Logically speaking, as long as any of the following conditions is true, the conclusion that the trademark registration applicant urgently needs to draw that the applied trademark and others’ previously cited trademarks do not constitute identical or similar trademarks on the same or similar goods can be established. :

(1) The goods specified by the applied trademark do not constitute the same or similar goods as the goods specified by others’ previously cited trademarks.

(2) The applied trademark is not the same as the previously cited trademark of others. constitute identical or similar trademarks.

2. Indirect Argument Part

After completing the direct argument part, if the trademark registration applicant can provide further evidence to prove the following facts, it will have the effect of strengthening the direct argument part. , to a certain extent, affect the freedom of mind of the examiners of the Trademark Review and Adjudication Board, thereby making the case trial develop in a favorable direction:

(1) The applied trademark and the cited trademark have long-term existence in the market in China or In foreign markets, the applied trademark and the cited trademark have objectively existed for a long time and can play a role in distinguishing the source of the respective goods. The relevant public has not had any doubts about the source of the goods because of the existence of the applied trademark and the cited trademark. Confusion and misidentification.

(2) There are favorable prior examination cases

In the examination practice of the Trademark Office or any foreign trademark administrative agency, there are prior examination cases similar to the situation in this case. In these examination cases, the difference between two registered trademarks that exist on the same or similar goods is of the same nature as the difference between the applied trademark and the cited trademark.

Response to the rejection of a trademark registration application by taking auxiliary measures other than rejection review

When the Trademark Office rejects a trademark registration application based on a relative rejection reason, in addition to filing a review application with the Trademark Review and Adjudication Board In addition, trademark registration applicants can also take one or more of the following auxiliary measures according to different circumstances to eliminate the obstacles to prior rights caused by the cited trademarks and achieve the ultimate goal of obtaining approved registration. According to the author’s practical experience, trademark registration applicants can usually consider taking the following auxiliary measures:

(1) Apply to the Trademark Office to cancel an application for not using a registered trademark for three consecutive years;

( 2) Submit an application to the Trademark Review and Adjudication Board for invalidation of the registered trademark;

(3) Submit a trademark objection application to the Trademark Office in a timely manner;

(4) Obtain the cited trademark through negotiation Ownership or right to use;

(5) Obtain the "Trademark Registration Consent" issued by the cited trademark registrant through negotiation, or reach a "Trademark Deposit Agreement" with the cited trademark registrant;< /p>

(6) Submit a separate registration application to the Trademark Office for the remainder of the applied trademark other than the conflicting part;

(7) Submit a new registration application to the Trademark Office for the applied trademark;

p>

(8) Appropriately modify the applied trademark and submit a registration application for the modified applied trademark to the Trademark Office.