10 November 2021TrademarksHaoyu Feng

China trademarks: How to use non-use

According to the Chinese Trademark Law, if a trademark is in non-use status for three consecutive years or longer from the beginning of the registration date, the trademark shall be vulnerable to non-use cancellation.

Non-use cancellation procedures are nowadays widely used in prosecution procedures to overcome citation or avoid infringement. This article analyses the procedure to assist trademark owners and professionals in understanding and benefiting from it.

Procedural issues

A trademark registrant needs to submit use evidence within two months after receiving the official Notification of Filing Use Evidence and extension or late filing is not allowed. If the authorities decide to cancel the trademark, the registrant is entitled to appeal within 15 days.

In addition to the short deadline, another annoying issue for the registrant is to cope with repeatedly filed non-use cancellations. A registered trademark might encounter two or more non-use cancellations filed by the same or different parties. In these circumstances, the trademark registrant is very likely to be confused by the notifications, which look very similar, and might mistakenly respond to only one or some.

However, such an insufficient response may lead to cancellation. In other words, the registrant is required to respond to each and every non-use cancellation separately.

Qualified use evidence

Evidence showing use of the trademark on goods, packages or containers and/or in trading documents such as invoices, sales contracts, packaging lists, in advertising, exhibition or other business activities are all acceptable. To screen out qualified use evidence, we need to make sure that the evidence includes, separately or jointly, the following five factors:

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