Trademark Office: How to handle the cancellation of registered trademarks for three consecutive years without using evidence of trademark use-Q&A.-Shenzhen deep trust patent Agency Co., LTD

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Trademark Office: How to handle the cancellation of registered trademarks for three consecutive years without using evidence of trademark use

Release Time：

2023-03-31

Ⅰ. Legal basis and handling conditions

On the basis of《Trademark Law of the People's Republic of China》Article 49 and《Trademark Law enforcement regulations》Article 66 Where a registered trademark is not used for three consecutive years without good reason, any entity or individual may apply to the Trademark Office for cancellation of the registered trademark.

After receiving the Notice on Providing Evidence of the Use of a Registered Trademark, the trademark registrant shall provide evidence of the use or explain the valid reasons for not using the trademark within 2 months.

Where the trademark registrant fails to provide the evidentiary materials for the use of the trademark within the prescribed time limit or the evidentiary materials are invalid and there is no valid reason, the State Intellectual Property Office shall cancel its registered trademark.

Ⅱ. Handling methods

(1) The registrant shall submit the evidentiary materials electronically by himself

If the attachment of the Notice on Providing Evidence of the Use of a Registered Trademark received by the registrant contains the defense binding code (consisting of numbers and English letters), the registrant may choose to provide evidence of the use by electronic means.

If you choose to provide evidence of use by electronic means, you shall upload it online in the form of electronic documents within the specified time through the trademark online service system as required. For details on the submission method, see the "Online Application" column of China Trademark Website. Trademark online service system website：https://sbj.cnipa.gov.cn/sbj/wssq/

If you choose to provide evidence of use by electronic means, the subsequent documents of the State Intellectual Property Office on the withdrawal application will be served by electronic means, and the relevant materials such as evidence of use submitted by the parties in paper form will no longer be accepted.

(2) The registrant shall submit the evidence materials in paper form by himself

The registrant can handle it by mail or submit it directly to the bidding registration hall of the State Intellectual Property Office.

Office Address: 1 Chama South Street, Xicheng District, Beijing 100055, China

Office hours: 8:30-11:3013:30-16:30

For more information, please call 010-63218500

(3) Entrust a trademark agency registered with the State Intellectual Property Office to handle the matter

Ⅲ. Requirements for the use of evidentiary materials

(1) the original of the "Notice on Providing evidence of the use of Registered trademarks" together with the envelope, the description of the submission that cannot be provided and the information about the trademarks involved and the cancellation application

If evidence of use is provided in paper form, the original copy of the Notice on Providing evidence of Use of Registered Trademarks shall be sent back together with the envelope; If the evidentiary materials are submitted by electronic means, the scanned copy of the above notice and envelope (both sides of the envelope need to be scanned) should be uploaded.

If the original copy of the Notice on Providing Evidence of Use of a Registered Trademark is not received for any reason, the registrant can only provide evidence of use in paper form; When providing evidence, it should explain the relevant situation that the Notice on Providing Evidence of the use of Registered Trademarks has not received, and indicate the necessary information such as the name of the trademark, the registration number, and the application number of the cancellation case involved (the above information can be queried on the China Trademark network), so that the staff can collect the evidence materials into the corresponding case file in a timely manner. If the above relevant information is not marked and the evidence materials cannot be collected, it is deemed that the corresponding evidence of use has not been provided.

(2) Catalogue or list of evidentiary materials

The trademark registrant shall compile the relevant evidence catalogue or list of the use evidence materials provided by it, and shall be responsible for the authenticity of the evidence materials provided.

Ⅳ.General requirements for evidence of trademark use

The evidentiary materials used to prove that the contested trademark does not exist in the case of non-use for three consecutive years shall meet the following requirements:

(1) can show the use of the contested trademark logo;

(2) can show that the contested trademark is used on the goods or services designated for use;

(3) Users who can show that the trademark is contested include the trademark registrant himself, others authorized by the trademark registrant, and other persons who do not use the trademark against the will of the trademark owner. If the license is granted to others, it shall be able to prove the existence of the license;

(4) be able to show the date of use of the contested mark, and should be calculated three years forward from the date of withdrawal of the application;

(5) can prove the use of the contested trademark in the territory covered by the Trademark Law;

Ⅴ. The specific forms of expression of the use of the trademark on the specified goods

1. Attaching the trademark to commodities, packaging, containers, labels, etc. by direct affiasing, engraving, branding or weaving, or using it on additional labels, product manuals, introduction manuals, price lists, etc.;

2. Trademarks are used in transaction documents related to commodity sales, including commodity sales contracts, invoices, bills, receipts, commodity import and export inspection and quarantine certificates, customs declaration documents, etc.;

3. The trademark is used in radio, television or other media, or published in publicly issued publications, and advertising is carried out by billboards, postal advertisements or other means of advertising as the trademark or the goods using the trademark;

4.Use of the trademark at exhibitions and fairs, including printed materials and other materials provided at exhibitions and fairs using the trademark;

5. Other forms of trademark use in accordance with the law.

Ⅵ. The specific manifestation of the use of the trademark in the specified services

1. The trademark is used directly on the service site, including on the service brochure, service site signboard, store decoration, staff clothing, posters, menus, price lists, lottery tickets, office stationery, stationery and other supplies related to the designated service;

2. Trademarks are used on documents related to services, such as invoices, money orders, service agreements, maintenance certificates, etc.;

3.The trademark is used in radio, television or other media, or published in publicly issued publications, as well as advertising for the trademark or services using the trademark by billboards, postal advertisements or other means of advertising;

4.Use of the trademark at exhibitions and expos, including printed materials and other materials provided at exhibitions and expos using the trademark;

5. Other forms of trademark use in accordance with the law.

Ⅶ. It is not regarded as the use of trademarks within the meaning of the Trademark Law

1.The publication of trademark registration information or the declaration of the trademark registrant on the exclusive right to use its registered trademark;

2. Not used in open commercial areas;

3. Change the use of the main parts and distinctive features of the registered trademark;

4. Only transfer or license without actual use;

5. Symbolic use for the sole purpose of maintaining trademark registration.

Ⅷ.Only the following evidence submitted shall not be regarded as the use of trademarks within the meaning of the Trademark Law

1. Commodity sales contract or service provision agreement, contract;

2. Written testimony;

3. It is difficult to identify physical evidence, audio-visual materials, website information, etc., whether it has been modified;

4. Physical objects and replicas.

Ⅸ.Under any of the following circumstances, it is a valid reason for not using it for three consecutive years

1. Force majeure;

2. Government policy restrictions;

3. Bankruptcy and liquidation;

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

Ⅹ. The parties may declare the use of evidentiary materials in the previous case

1. Where the parties have submitted evidence of use in the three previous withdrawal cases, and the relevant evidence of use can prove the use of the trademark in the case, it may not be submitted again. The evidence of use in the previous case should be consistent or overlapping with the case in terms of the time of use, the goods/services used, and the trademark logo used.

2. If the parties need to use the evidence of the previous case, they shall return the relevant written statement with the Notice on Providing evidence of the use of Registered Trademarks, stating the relevant application number and trademark registration number of the previous case (three cases withdrawn), so that the examiner can check it. If no explanation is given or the explanation is unclear and cannot be consulted, it shall be deemed that no relevant evidence has been submitted in the case.

3. If the parties submit evidence of use in the case and declare the use of evidence materials used in the previous case, if there is any conflict or inconsistency between the evidence materials in the previous case and the evidence materials provided in the case, the evidence materials in the case shall prevail in the trial.　　

Ⅺ. The evidence of use covers only part of the cases where the goods are applied for cancellation

If the application for cancellation of the non-use of a registered trademark for three consecutive years requires the cancellation of the registration of the trademark on all approved goods, and the evidence of use provided by the trademark registrant can only prove that it has used the registered trademark on some approved goods, the registration of that part of the goods and goods similar to that part of the goods may be maintained, and other goods shall be cancelled.

If the application for cancellation of the non-use of a registered trademark for three consecutive years requires the cancellation of the registration of the trademark on a part of the approved use of the goods (hereinafter referred to as the applied goods), and the evidence of use provided by the trademark registrant can prove that it has used the registered trademark on some of the applied goods, the registration of the part of the applied goods and goods similar to the part of the applied goods may be maintained. Other goods shall be cancelled.

The goods actually used by the disputed trademark do not belong to the standardized trade name in the "Similar Goods and Services Classification Table", but it is different from the name of the goods approved by the disputed trademark, in essence belong to the same commodity, or the actual use of the goods belong to the concept of approved goods, can be deemed to constitute the use of approved goods.

When the trademark is contested for approval and registration, the approved goods not actually used and the goods actually used are not similar goods in the Similar Goods and Services Sub-table, but due to the changes in the Similar Goods and Services Sub-Table, they are similar goods at the time of the case trial, the factual status at the time of the case trial shall prevail, and the registration of the goods not actually used can be maintained.

When a trademark is contested for approval and registration, the approved goods that have not actually been used and the goods that have actually been used are similar goods in the Similar Goods and Services Classification Table, but due to the changes in the Similar Goods and Services Classification Table, they are not similar goods at the time of trial, the actual status at the time of registration approval shall prevail, and the registration of the goods that have not been actually used may be maintained.

The above content was revised in March 2023, if there is any change later, or if it is inconsistent with the requirements of the staff in the processing, the requirements of the staff shall prevail.

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