According to Article 22 of Regulations for the Implementation of the Trademark Law of the People’s Republic of China, where the Trademark Office refuses an application for trademark registration on a part of the designated goods, the applicant may file a divisional application for the part which has been granted initial approval, and the date of application of the divisional application shall be the same as that of the parent application. This means when the applicant needs to divide an application, it shall file a divisional application to the Trademark Office.
Where the Trademark Office refuses a trademark application on a part of the designated goods, it will issue a Notice of Partial Refusal to the applicant together with a divisional application page. The applicant, when it needs to divide the application, shall file the fulfilled divisional application page back to the Trademark Office with 15 days after receiving the Notice of Partial Refusal.
After receiving the application for division, the Trademark Office will examine the application and divide the original trademark applications into two applications if it meets the requirements. One application for part of approved goods will be assigned a new application number and published for opposition. The other application for rejected part will keep the original application number and proceed with review procedure (possible later lawsuit) to try to get the registration.
Ⅲ.How to make the right choice of division?
Normally the applicant could make the choice based on three situations:
①No review, no division
If the applicant is not interested in filing a review for the rejected goods, the approved part will proceed to publication and get registration if no opposition is filed within 3 months. So no review is filed, no division is filed.
②Review, no division
If the applicant wants to file a review for the rejected goods, but is not eager to get earlier registration for the approved part, there is no need to file divisional application. The approved part will wait for the result of the review and proceed to publication and get registration if no opposition is filed within 3 months.
③Review, and division
If the applicant wants to file a review for the rejected goods, and is also eager to get earlier registration on the approved part, a divisional application shall be filed.
Then the approved part will be published and registered soon, and the rejected part will enter into review, and possibly later lawsuit procedure.
A review procedure will take about 12 months or even longer, so for applicants who want to get registration certificates on the approved goods as soon as possible to arrange business, a divisional application is necessary and advised.
①One trademark application can only be divided once, and only in the procedure where the Trademark Office refused it on a part of goods. Other procedures are not open for division.
②The divisional application must be filed within 15 days after receiving the Notice of Partial refusal and no extension is allowed. Once the divisional is filed, it cannot be withdrawn.
③After division, one application becomes two, and then all the subsequent fees would be charged separately as two cases.