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The trademark is withdrawn three, to provide what kind of evidence to meet the requirements?

Release Time：

2022-09-16

First, what is "withdrawal three"

Trademark Act Article 49: If a registered trademark is not used for three consecutive years without a valid reason, any unit or individual may apply to the Trademark Office to revoke the registered trademark, commonly known as the "withdrawal three" system.

The purpose of the legislation is to urge trademark registrants to use trademarks legally and effectively, objectively to clean up idle trademarks, curb malicious registration, maintain fair competition order, to a certain extent, restrain the "note without use", and curb the abuse of the exclusive right to use registered trademarks for improper interests.

The trademark registrant bears the burden of proof in the system of withdrawal（Trademark Law enforcement regulations Article 66）。

In practice, the trademark Office will notify the trademark registrant of the defense of the document by registered mail to the trademark registered address, some of the registered letters due to unknown address or check the person was returned by the post office. After analysis, the reasons for the return of letters are as follows: first, there is a large number of enterprises operating in different places; The second is that the registrant fails to submit the application for change of registered trademark address to the Trademark Office in time after changing the address.

Second. Analysis of the current situation of withdrawal

The number of withdrawal applications increased year by year, 29,000 in 2015, 40,000 in 2016, and 57,000 in 2017. From the application motivation analysis, post-registration applicants will more withdraw the three systems as a means to clear the obstacles to trademark registration. The main reasons are:

1. The number of registration applications is growing rapidly, trademark resources are limited, and the difficulty of successful registration is increasing.

2. The phenomenon of malicious squatting is increasing, and the person who is squatted is applying for cancellation by means of withdrawal and invalidation.

At present, there are three initiating situations of dissimilation, including:

1. Speculative psychology and malice without investigation;

2. Filing multiple withdrawal applications to achieve the purpose of maliciously attacking competitors and seizing trademark rights.

Therefore, it is recommended that trademark agencies:

1. Guide applicants: Guide and encourage applicants to provide cancellation facts, reasons and explanatory materials to reduce the occurrence of malicious applications and blind applications. Encourage fair competition and avoid wasting the country's administrative and judicial resources;

2. Guide registrants: keep evidence of trademark use and submit evidence of use as required by administrative and judicial authorities.

Suggestions: Enterprises should enhance the awareness of trademark management, pay attention to the use of trademarks, and prevent the risk of "being withdrawn three". One is to do a good job of trademark use evidence retention, daily business backup of various use evidence, classified collection. The "Measures for the Administration of Trademark Archives" will be revised and released, please pay attention to it, which stipulates the requirements and methods for the collection, sorting, archiving, storage and utilization of trademark archives, providing a reference for enterprises and other organizations to strengthen internal trademark archives management. Enterprises can refer to the measures to establish an enterprise trademark archive work system, improve the enterprise trademark archive work system, take trademark archives as an important part of enterprise archives, do a good job in collection, sorting, archiving, storage, retrieval and utilization, and help enterprises to strengthen trademark registration, application, management and protection. Second, if the address registered in our bureau is unable to check the letter, please handle the application for address change as required in time to ensure the receipt of various documents issued by our bureau and the business judge, and maintain their rights in time.

Thirdly, remove the use of evidence requirements

Based on the correction of the "note without use" caused by the absolute registrationism and the cancellation of the abuse of the applicant, in recent years, the administrative and judicial organs have produced a new change in the recognition principle of the use of trademarks, from the sole "use in accordance with the form of legal provisions" to the application of "use in the sense of trademark law" standard. The openness and authenticity of trademark use are verified in a practical way, and the evidence of use that does not conform to the meaning of trademark law is excluded.

On the basis of Trademark adjudication standard (The Trademark Office and the Business Judge in December 2016) stipulated that the evidence materials used to prove that the contested trademark does not exist in the case of non-use for three consecutive years should meet the following requirements:

（1）Be able to display the contested trademark logo used;

（2）Be able to show that the contested mark is used on the goods/services specified for use;

（3）The user who can show that the trademark is contested includes both the trademark registrant himself and others authorized by the trademark registrant. If the license is granted to others, it shall be able to prove the existence of the license;

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

（5）Be able to prove that the contested trademark is Trademark Act use within the territory covered by the effectiveness.

The use of a trademark that is not considered within the meaning of Trademark Act is regulated by enumeration:

(1) the publication of trademark registration information or the declaration of the trademark registrant about the exclusive right to use its registered trademark;

(2) not used in open commercial areas;

(3) Only as a gift;

(4) only transfer or license act without actual use;

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

Fourthly. Zero tolerance for falsified evidence

Administrative and judicial organs shall strictly examine forgery of evidence. "Beijing High Court: Legal Issues that Need Attention in Current Intellectual Property Trials" believes that if part of the evidence provided by the trademark registrant is forged, all evidence should be strictly examined, the standard of proof should be raised accordingly, and the act of falsifying evidence should be punished to make an example of others.

For example, in No. 1707490 "Chuanhu and Tu" cancellation review case, the applicant for cancellation held that the invoice submitted by the registrant was forged on the ground that the invoice did not exist, the registrant did not make sufficient and reasonable explanation, and the court did not accept the validity of the invoice as proof.

Also, be sure not to use homemade pictures as evidence!

Fifth. Suggestions on the submission of three evidentiary materials

Recommendation on the submission of three evidentiary materials

1. Reduce paper evidence to less than 100 pages;

2. Advocate the use of optical discs instead of paper forms to submit evidence.

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