A close look at non-use TM examinations

Brand owners in China should be aware of developments in trademark non-use cancellation examinations, says Shufang Zhang of CCPIT Patent and Trademark Law Office.

In recent years, the number of trademark non-use cancellations has seen rapid growth in China. The surge mainly stems from rising trademark applications and stricter recognition of Letters of Consent by CNIPA and courts, leaving non-use cancellation actions as a key method to overcome prior trademark barriers.

According to CNIPA data, the number of cancellation reviews made by the trademark department has been increasing rapidly.

The number of cancellation reviews of trademarks was 14,866 in 2022, 16,438 in 2023, and 18,693 in 2024 (Annual Report of the National Intellectual Property Administration 2023; Monthly Statistical Report on Examination, Registration and Enrollment of the National Intellectual Property Administration (December 2024)).

Although there is no officially released data on the number of non-use cancellation applications, as a pre-procedure of review of non-use cancellations, the significant growth of review cases implies an obvious increase in the number of non-use cancellations as well.

At the same time, with the rapid growth in non-use cancellation cases, problems such as malicious cancellation have emerged.

Some applicants take advantage of the “inverted burden of proof” in the non-use cancellation procedure to launch malicious attacks with false or one-sided evidence, increasing the costs of trademark owners to defend their marks.

The trademark non-use cancellation system is a key mechanism for maintaining the effective use of trademark resources.

Through the cancellation procedure, stock trademarks can be cleared, and trademark registrants can be urged to actively use their trademarks.

And in order to optimise the allocation of trademark resources while balancing the protection of trademark owners, the CNIPA has made new adjustments and changes to the examination of cancellation cases.

Changes in the examination of non-use cancellations

Although the China Trademark Law does not clearly stipulate the requirements for the evidence provided by the applicant initiating non-use cancellation actions, Article 66 of the Implementing Regulations of the China Trademark Law states: “Where a registered trademark has not been used for three consecutive years without justifiable reasons as provided in Article 49 of the Trademark Law, any entity or individual may apply to the Trademark Office for cancellation of the registered trademark and shall state the relevant circumstances when submitting the application”.

Such regulation allows the CNIPA to exert more efforts in examining the “relevant circumstances”, and make changes in its examination.

The latest changes are:

Examination of subjective intention of the cancellation applicant:

Since the latter part of last year, for applicants filed a large number of non-use cancellation applications within a certain period, the CNIPA issued notices of amendments, requesting the applicants to provide reasonable explanations on their intentions for filing the non-use cancellation applications and submit evidence to support the explanations.

More stringent requirements for preliminary investigation evidence from non-use cancellation applicants:

Since January 2025, applicants for non-use cancellation cases have successively received notifications of amendments from the CNIPA, requesting providing more preliminary investigation evidence regarding the fact that the trademark subject to cancellation has not been used for three consecutive years.

Previously, in non-use cancellations, when applying for the non-use cancellation applications, the applicant only needed to provide a few screenshots of simple keyword searches on the internet as evidence.

According to the latest practice, the CNIPA requires that the applicant submit preliminary investigation evidence including the following three categories:

i) Basic information of the registrant of the trademark subject to cancellation, including business scope, business status or existence status, trademark registration status, etc.

ii) If the registrant is in business or exists, investigation reports and evidence on the registrant’s product sales or service provision, business premises or office locations, etc, should be provided.

iii) Investigation evidence of the trademark under attack on comprehensive online platforms and industry—specific websites for the goods or services specified in the trademark registration. For relevant searches, consecutive five-page, full-page retrieval screenshots starting from the homepage should be provided, and no fewer than three platforms should be used for the retrieval.

It can be seen that, according to the new practice, when filing an application for non-use cancellations, the applicant needs to submit three main types of evidence, namely, investigation information on the basic information of the registrant, on the business status, and multi-platform search evidence of trademark use.

These changes indicate that the CNIPA has adjusted the burden of proof for cancellation applications, changing the previous situation where the burden of proof was substantially borne by the trademark registrant.

Substantive-oriented examination:

In both the examination of the preliminary evidence for filing non-use cancellation application and the subjective intentions of the cancellation applicant, compared with the previous practices, the CNIPA has adopted a more stringent examination method.

It examines not only the intention of the applicant but also verifies the submitted preliminary evidence.

In addition, the CNIPA has added some circumstances where nonuse cancellation applications will not be accepted.

For example, if an application is made for improper profit-making through cancellation actions, it will not be accepted.

In fact, in the Notice on Issuing the Annual Work Guide for Promoting the High – Quality Development of Intellectual Property Rights (2024) issued by the CNIPA, it is clearly stated that “continuously promote the dynamic revision of the Guidelines on Trademark Review and Adjudication”.

In the ongoing discussion on the dynamic revision of the guidelines, for non-use cancellation cases, the CNIPA is also considering adjusting the application documents for cancellations, including requiring that the preliminary investigation evidence include the existence status of the trademark registrant, actual business status, trademark registration and use status.

Meanwhile, the application of the principle of good faith in the cancellation procedure is emphasised, and some circumstances where cancellation applications will not be accepted are added.

For example, applications filed under false pretenses, borrowing others’ names; applications submitted with forged or false materials; applications for cancellation of registered trademarks that the applicant knows or should know are in use; applications that disrupt the normal business of the registrant through the cancellation procedure and etc, will not be accepted.

Although these adjustments are still under discussion, some of them have already been reflected in the current examination practice.

Impact on trademark owners and cancellation applicants

The CNIPA has taken measures such as raising the threshold for the burden of proof of non-use cancellation applicants and optimising the review procedure to reduce the malicious cancellation applications.

This allows trademark owners to invest more energy and resources in their brand building, and also promotes the return of the trademark system to a “use-oriented approach”.

For trademark registrants, the decline of malicious non-use cancellation applications reduces the risk of being challenged without reason. They can focus more on brand building.

On the other hand, the CNIPA stresses more on the integrity of the registrant, as well as the authenticity and relevance of the evidence during the examination of use evidence.

Therefore, trademark registrants are advised to strengthen the management of their trademark use evidence, regularly collect and organise relevant evidence of trademark use, to ensure that valid use evidence can be provided in defence of non-use cancellations.

For applicants of non-use cancellations, they are advised to pay close attention to the new requirements on application documents to ensure the smooth acceptance of their applications.

At the same time, when filing a nonuse cancellation application, it is necessary to follow the principle of good faith and file the cancellation application based on reasonable business purposes.

These ongoing or foreseeable changes reveal the trends in the CNIPA’s examination of non-use cancellation cases.

Both cancellation applicants and trademark owners should closely follow these changes and adjust their strategies for non-use cancellation applications, trademark registration applications, and use management accordingly to better adapt to the new practices.

Shufang Zhang is a trademark attorney at CCPIT Patent and Trademark Law Office. She can be contacted at: zhangshf@ccpit-patent.com.cn