Providing evidence of trademark use in a non-use case

Under Article 49 of the Trademark Law of the People's Republic of China and Article 66 of the Implementing Regulations, where a registered trademark has not been used for three consecutive years without a valid reason, any organization or individual may apply to the Trademark Office to cancel it.

After receiving the Notice to Provide Evidence of Use of a Registered Trademark (《关于提供注册商标使用证据的通知》), the registrant shall, within two months, provide evidence of use or explain a valid reason for non-use.

If the registrant does not provide evidence of use within that period, or the evidence is invalid and there is no valid reason, CNIPA cancels the registered trademark.

(1) The registrant submits evidence electronically on its own

If the attachment to the Notice to Provide Evidence of Use of a Registered Trademark contains a response binding code (made up of digits and English letters), the registrant may choose to provide evidence of use electronically.

A registrant choosing this route shall upload the evidence online as electronic files through the trademark online service system, as required and within the set time. See the "Online Application" section of the China Trademark Website for how to submit. System address: https://sbj.cnipa.gov.cn//trademark-apply

If the registrant chooses this route, CNIPA delivers its later documents on the cancellation application electronically and no longer accepts evidence of use or related materials from that party on paper.

(2) The registrant submits evidence on paper on its own

The registrant may send the evidence by post or deliver it in person to the CNIPA Trademark Registration Hall.

Address: No. 1 Chamanan Street, Xicheng District, Beijing. Postal code: 100055.

Office hours: 8:30-11:30 and 13:30-16:30.

Enquiries: 010-63218500.

(3) The registrant appoints a trademark agency recorded with CNIPA

(1) The original Notice to Provide Evidence of Use of a Registered Trademark with its envelope or, if they cannot be provided, an explanation with the details of the mark and the cancellation application concerned

A registrant providing evidence on paper shall send back the original notice with its envelope. A registrant submitting electronically shall upload scans of the notice and the envelope (both sides of the envelope).

A registrant who for some reason did not receive the original notice may provide evidence of use only on paper. When doing so, it shall explain why the notice was not received and state the necessary details, such as the name of the mark whose use is to be proved, the registration number, and the application number of the cancellation case (these can be found on the China Trademark Website), so that staff can promptly add the evidence to the right case file. If these details are missing and the evidence cannot be added to the file, the evidence of use is treated as not provided.

(2) A table of contents or list of the evidence

The registrant shall prepare a table of contents or list of the evidence of use it provides, and is responsible for the authenticity of the evidence.

Evidence offered to prove that the disputed mark has not gone unused for three consecutive years shall meet the following requirements:

(1) It can show the disputed mark as used.

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

(3) It can show who used the disputed mark. This includes the registrant itself, others licensed by the registrant, and others who use the mark without going against the will of the trademark right holder. If the mark was licensed to another party, the evidence shall be able to prove that the license relationship exists.

(4) It can show the date of use of the disputed mark, which shall fall within the three years counted back from the date of the cancellation application.

(5) It can prove use of the disputed mark within the territory where the Trademark Law applies.

1. Attaching the mark to goods, packaging, containers, labels, and the like by directly affixing, engraving, branding, weaving, or similar means, or using it on tags attached to goods, product instructions, brochures, price lists, and the like.

2. Using the mark on transaction documents connected with the sale of goods, including sales contracts, invoices, bills, receipts, import and export inspection and quarantine certificates, customs declaration documents, and the like.

3. Using the mark in broadcast, television, or other media, or publishing it in publicly issued publications, and advertising the mark or the goods bearing it on billboards, by direct mail, or by other means of advertising.

4. Using the mark at exhibitions and trade fairs, including printed matter and other materials bearing the mark provided there.

5. Other forms of trademark use that comply with the law.

1. Using the mark directly at the place of service, including on service brochures, signboards, shop decoration, staff clothing, posters, menus, price lists, lottery tickets, office stationery, letter paper, and other articles related to the designated services.

2. Using the mark on documents connected with the services, such as invoices, remittance documents, service agreements, and repair or maintenance certificates.

3. Using the mark in broadcast, television, or other media, or publishing it in publicly issued publications, and advertising the mark or the services bearing it on billboards, by direct mail, or by other means of advertising.

4. Using the mark at exhibitions and trade fairs, including printed matter and other materials bearing the mark provided there.

5. Other forms of trademark use that comply with the law.

1. Publication of trademark registration information, or a registrant's statement that it holds the exclusive right to its registered trademark.

2. Use that is not in the open commercial field.

3. Use that changes the main part and distinctive features of the registered trademark.

4. An assignment or license alone, with no actual use.

5. Token use made only to keep the registration alive.

1. Sales contracts for goods, or agreements or contracts for providing services.

2. Written witness statements.

3. Physical evidence, audiovisual materials, website information, and the like where it is hard to tell whether they have been altered.

4. Physical items and reproductions.

1. Force majeure.

2. Government policy restrictions.

3. Bankruptcy liquidation.

4. Other valid reasons not attributable to the registrant.

1. A party that has already submitted evidence of use in an earlier non-use cancellation case need not submit it again if that evidence can prove the use in this case. The earlier evidence shall match or overlap with this case in three respects: the time of use, the goods or services, and the mark as used.

2. A party relying on evidence from an earlier case shall return a written statement with the Notice to Provide Evidence of Use of a Registered Trademark, giving the application number and trademark registration number of the earlier non-use cancellation case so that the examiner can consult it. If this is not stated, or is too unclear for the evidence to be consulted, the evidence is treated as not submitted in this case.

3. If a party submits evidence of use in this case and also states that it relies on evidence from an earlier case, and the two conflict or differ, the evidence provided in this case prevails in the examination.

Where a non-use cancellation application seeks to cancel the registration for all approved goods, and the registrant's evidence proves use on only some of them, the registration may be kept for those goods and for goods similar to them, and is cancelled for the other goods.

Where a non-use cancellation application seeks to cancel the registration for some of the approved goods (the challenged goods), and the registrant's evidence proves use on some of the challenged goods, the registration may be kept for those challenged goods and for goods similar to them, and is cancelled for the other goods.

Where the goods on which the disputed mark is actually used do not carry a standard goods name in the Similar Goods and Services Classification Table (《类似商品和服务区分表》), but differ from the approved goods in name only and are essentially the same goods, or are a narrower category within the approved goods, this may be found to be use on the approved goods.

Where, when the disputed mark was registered, the approved goods not actually used and the goods actually used were not similar goods in the Classification Table, but they are similar goods when the case is examined because the Table has changed, the facts at the time of examination govern, and the registration for the goods not actually used may be kept.

Where, when the disputed mark was registered, the approved goods not actually used and the goods actually used were similar goods in the Classification Table, but they are not similar goods when the case is examined because the Table has changed, the facts at the time of registration govern, and the registration for the goods not actually used may be kept.

This content was revised in March 2023. If it later changes, or differs from what staff require in practice, the staff's requirements prevail.