Appeal against refusal: documents to prepare
An appeal against a refusal opens with three items: the contested decision itself, evidence supporting the mark's distinctiveness or the prior right relied on, and a signed authorisation for whoever files on your behalf. Everything else — arguments, translations, additional exhibits — builds on that base once the appeal is formally lodged inside the office's fixed window.
How the mechanism works
The mechanism is procedural before it is evidentiary. The office that issued the refusal also receives the appeal at first instance; it checks that the filing is admissible before anything is read on the merits. A separate appeal body then reviews the file properly, without the applicant having to restate the whole case from nothing. What changes between stages is who reads the file and how formal the submission has to look — not the underlying substance of the mark itself.
What changes once the clock starts
Once the refusal decision is served, the file effectively freezes. New grounds cannot be added later, and evidence gathered too late tends to arrive after the panel has already formed a view of the case. The same discipline of matching evidence to a deadline surfaces elsewhere on the site, in How damages quantification patent runs in practice, where quantum submissions follow a comparable rhythm: build the record early, or accept that it will read as incomplete when it matters most.
The practical consequence is that the appeal window is not a planning buffer. It is the deadline itself. Missing it does not delay the case — it usually ends it, since most offices treat a late appeal as never having been filed.
What to do
- Retrieve the refusal decision and note the date it was served. That date, not the original filing date, starts the appeal window.
- Instruct the person filing the appeal to prepare a signed authorisation. Unrepresented or informally represented filings are rejected on formalities more often than properly authorised ones.
- Assemble the evidence file appropriate to the ground for refusal: examples of use, distinctiveness surveys, prior registrations, or a consent letter from a prior right holder.
- If the mark sits inside a wider licensing or security arrangement, check that arrangement before filing. The same paperwork audit described in Contract review against a security annex applies to any interlocking right that could complicate the appeal.
- Translate any foreign-language exhibits into the language of the proceedings before the deadline, not after it.
- File within the office's window and keep proof of the filing date itself — a receipt or confirmation screen, not a memory of when it happened.
Who decides
Three layers usually apply, though the exact names differ between offices. The table below sets out what each layer actually checks, rather than what it is called.
| Stage | Who handles it | What it reviews |
|---|---|---|
| First instance | The office that issued the refusal | Whether the appeal is formally admissible |
| Second instance | A separate appeal board | The merits: distinctiveness, prior rights, submitted evidence |
| Further review | A court, where the applicable system allows it | Points of law rather than fresh evidence |
Each layer has its own fixed window for a next step. Missing one does not roll over into the next layer automatically — the file simply stops there.
Where the file forks
If the refusal rests on absolute grounds — the office considers the mark descriptive or non-distinctive — then evidence of acquired distinctiveness, such as sales figures, advertising spend, or market surveys, carries most of the appeal's weight.
If the refusal rests on relative grounds — a prior right blocks the mark — then a consent letter or a coexistence arrangement with the prior right holder can resolve the conflict before the panel is even asked to rule on it.
If the same portfolio also carries tokenised assets tied to the same brand, the proof problem multiplies rather than doubles. The parallel case is set out in What offering document token issuance how it is proved, and the two files should not be built in isolation from each other.
What this page does not solve
This page does not predict whether a given appeal will succeed, and it does not replace advice on the merits of a specific refusal. Every refusal turns on its own facts, and the same ground can play out differently depending on the evidence actually available.
It also does not cover what happens once a mark has cleared refusal but still needs to be pledged as security or licensed onward. That timing runs on a different clock, set out in Asset report before a right is pledged: the deadline that matters once a registration exists rather than a decision still under contest.
Related reading
The same document discipline applies outside the appeal context: How customs application for action trade mark documents to prepare shows the file assembled for border enforcement rather than for an appeal, but the underlying habit — dates first, evidence second — carries over directly.
Frequently asked questions
How long does appeal against refusal take in practice?
The office sets a fixed window to file the appeal itself, then a separate and usually longer period elapses before the appeal board issues a decision. An uncontested appeal moves faster than one where the other side responds in force with its own evidence.
Which documents are needed to start?
The contested refusal decision, a signed authorisation for whoever files, and the core evidence supporting the specific ground of appeal. Everything else can follow once the appeal itself is lodged inside the window.
What happens if the other side does not respond?
Silence from an opposing party does not end the case automatically. The panel still reviews the file on its own merits, and the appellant's evidence still has to stand on its own, without the benefit of an admission by default.
Verified
Verified against the published appeal guidance of the relevant trade mark and design offices, cross-checked against our own file records. Last reviewed: November 2025. No court decision is cited on this page; where a specific ruling matters to a particular file, we address it separately once instructed.
Before you file
If a competing right is dangled at you in the middle of a dispute, the risk calculus is different from the one described above — see When a patent is offered to you for sale for how that situation is handled.
If the refusal itself is still fresh and the next step is not yet clear, start with When an office action refuses your application in practice before assembling the appeal file described here.