CNIPA's answers on non-use cancellation

Under Article 49 of the Trademark Law, where a registered trademark has become the generic name of its approved goods, or has not been used for three consecutive years without justifiable reason, any organization or individual may apply to the Trademark Office to cancel that registered trademark.

Under Article 66 of the Regulations for the Implementation of the Trademark Law of the People's Republic of China, an application to cancel a registered trademark on the ground that it has not been used for 3 consecutive years without justifiable reason must be filed after 3 years have passed from the date of that registered trademark's registration announcement.

Any of the following circumstances is a justifiable reason for three consecutive years of non-use:

1. Force majeure;

2. Government policy restrictions;

3. Bankruptcy liquidation;

4. Other justifiable causes not attributable to the trademark registrant.

1. For a multi-class mark, a non-use cancellation may be filed against a single class only. 2. If the response fails, the rights in the other classes are not affected.

A trademark is valid during its exclusive-right term.

Article 49 of the Trademark Law of the People's Republic of China and Article 66 of the Regulations for the Implementation of the Trademark Law provide that where a registered trademark has not been used for three consecutive years without justifiable reason, any organization or individual may apply to CNIPA to cancel that registered trademark.

Article 34 of the Trademark Law of the People's Republic of China provides that a trademark registration applicant who disagrees may apply to CNIPA for review within fifteen days from the date of receiving the notice.

There is no requirement to submit a statement of trademark use every five years.

Evidence used to prove that the disputed trademark has not gone unused for three consecutive years must meet the following requirements:

(1) It can show the sign of the disputed trademark as used;

(2) It can show that the disputed trademark was used on the designated goods or services;

(3) It can show who used the disputed trademark, which includes the trademark registrant itself, others licensed by the registrant, and other persons who use the mark in a way not contrary to the will of the trademark owner. Where another party is licensed to use it, the existence of the license relationship must be provable;

(4) It can show the date of use of the disputed trademark, which must fall within the three years counted back from the date of the cancellation application;

(5) It can prove use of the disputed trademark within the territory to which the Trademark Law applies;

Where a non-use cancellation application seeks to cancel the registration on all approved goods, and the use evidence provided by the trademark registrant can prove use of the registered trademark only on some of the approved goods, the registration on those goods and on goods similar to them may be maintained, and the registration on the other goods is cancelled.

Where a non-use cancellation application seeks to cancel the registration on part of the approved goods (hereinafter the challenged goods), and the use evidence provided by the trademark registrant can prove use of the registered trademark on some of the challenged goods, the registration on those challenged goods and on goods similar to them may be maintained, and the registration on the other goods is cancelled.

Where the goods on which the disputed trademark is actually used are not a standard goods name in the Classification of Similar Goods and Services, but differ from the approved goods of the disputed trademark only in name and are in essence the same goods, or where the goods actually used are a narrower concept within the approved goods, this may be found to constitute use on the approved goods.

Where, when the disputed trademark was approved for registration, the approved goods not actually used and the goods actually used were not similar goods in the Classification of Similar Goods and Services, but because of changes to the Classification they are similar goods when the case is heard, the factual state at the time of the hearing governs, and the registration on the goods not actually used may be maintained.

Where, when the disputed trademark was approved for registration, the approved goods not actually used and the goods actually used were similar goods in the Classification of Similar Goods and Services, but because of changes to the Classification they are not similar goods when the case is heard, the factual state at the time of approval for registration governs, and the registration on the goods not actually used may be maintained.

Under the Trademark Examination and Trial Guidelines, the registrant must submit use evidence within the prescribed period as required by the Notice to Provide Use Evidence. The explanatory materials and use evidence submitted by the registrant must have a table of contents and be bound in the order of that table. Use evidence submitted is generally not returned.

Where the registrant submits use evidence after the prescribed period but before the trademark registration department completes the relevant examination procedure, that evidence may be taken into account as use evidence on file. Use evidence submitted after the trademark registration department completes the relevant examination procedure is not examined as use evidence on file.

Please submit any supplementary evidence promptly; whether it can be taken into account as use evidence on file is subject to examination.

A cancelled registered trademark is announced by the Trademark Office, and the exclusive right in that registered trademark ends from the date of the announcement.

After a trademark registration application is filed, the outcome is subject to the Trademark Office's examination.

In this situation, the withdrawal application must be filed before the examination conclusion is issued.