Under the Chinese Trademark Law, a registered trademark that has not been genuinely used for three consecutive years is vulnerable to revocation. This mechanism, known as "non-use cancellation," is frequently employed by third parties seeking to clear a blocking citation that prevents their own trademark from being registered.
If you are a trademark registrant facing such an action, understanding the legal framework and the evidentiary requirements is critical to maintain your rights. This article outlines the key provisions and provides a strategic guide to responding effectively.
1. The Legal Basis: Article 49 of the Chinese Trademark La
The statutory basis for non-use cancellation is found in Article 49 of the Chinese Trademark Law, which provides:
"Where a registered trademark has not been put in use for three consecutive years without a justifiable reason, any entity or individual may apply to the China National Intellectual Property Administration (CNIPA) for revocation of the registered trademark."
This provision serves two purposes: it penalizes the hoarding of unused trademarks and clears the register for legitimate commercial users. Critically, the deadline to respond to a cancellation action is strict—no extensions are available, and there is no supplementary filing period.
2. Understanding the Timeline and Burden of Proof
When a third party files a non-use cancellation action, the registrant receives a notification from the CNIPA. The registrant has two months from the official "receipt date" to submit evidence of use. A little detail is that if your trademark is an international registration designated into China, the aforesaid notification will be sent by the CNIPA to your recorded agency before the World Intellectual Property Organization (WIPO), and the envelope of the notification should be properly kept, because the deadline of responding to the notification shall be calculated based on the receipt date on the envelope.
The relevant three-year period for which use must be proven is the three-year period preceding the filing date of the cancellation action. For example, if the action was filed on December 17, 2025, requiring proof of use from December 17, 2022, to December 16, 2025.
The burden of proof rests mostly on the registrant. If the registrant fails to submit valid evidence of use or a justifiable reason for non-use within the deadline, the CNIPA will cancelthe registration for the designated goods in question. The applicant who raised non-use cancellation action is required to bear a certain burden of proof of non-use when submitting the application, namely when an applicant submit a non-use cancellation against trademark registration, the applicant needs to submit 1) registrant’s business registration evidence, including basic information of the registrant, business scope, business status or existence status of the registrant, and trademark registration status; 2. network trademark use search evidence. Evidence of searching and investigating the canceled trademark on comprehensive online platforms, industry-specific websites for designated goods or services, etc. should be provided, and related searches should provide screenshots of the entire page from the homepage to five consecutive pages, and at least three platform searches should be provided.
3. What Constitutes "Use" of a Trademark?
The Chinese Trademark Law defines "use" broadly, focusing on commercial activities that identify the source of goods. Generally speaking, the following evidence will work well in convincing the examiners.
1) Affixing the trademark directly to the goods, packaging, containers, labels, etc. through methods such as pasting, engraving, embossing, or weaving, or using it on additional tags, product manuals, brochures, price lists, etc. associated with the goods;
2) Using the trademark on transaction documents related to the sale of goods, including on sales contracts, invoices, receipts, import and export inspection and quarantine certificates, customs documents, electronic commerce transaction documents or records, etc.;
3) Using the trademark in media such as radio, television, internet, or in publicly distributed publications, as well as in advertising for the trademark or goods bearing the trademark through billboards, direct mail advertising, or other advertising methods;
4) Using the trademark at trade shows, exhibitions, including but not limited to using it on exhibition printed materials, badges, signs, and backgrounds to indicate the source of goods and services;
5) Reflecting the use of the trademark on legal documents and certificates issued by government agencies, inspection or authentication institutions, and industry organizations
Self-made evidence, such as internal brochures or documents prepared solely for the purpose of the cancellation proceeding, carries weak probative value and must be corroborated by external, reliable evidence like public advertisements or third-party invoices.
The trademark registrant shall use the registered trademark on the approved goods. If the trademark registrant uses the registered trademark on one approvedgoods, the registration on the similar approved goods may be maintained. However, if the trademark registrant uses the registered trademark on similar goods other than those approved one, such use shall not be deemed as use of the registered trademark.
If the goods on which the disputed trademark is actually used are not listed as standard goods names in the Chinese Classification of Goods and Services, but are essentially the same as the approved goods under the disputed trademark (except for the difference in names), or if the actual goods used fall under the subordinate concept of the approved goods, such use may be recognized as use on the approved goods.
If the goods actually using the disputed trademark have not circulated in the domestic Chinese market but are directly exported, it may be recognized as use of the approved goods.
4. The Five Essential Elements of Valid Evidence
There is no specific requirement regarding the quantity of evidence, but the evidence to be accepted by the CNIPA, it must collectively demonstrate the following five elements:
1) The Registered Mark: The evidence must clearly show the trademark as registered.
2) The Designated Goods: The use must be on the specific goods covered by the registration. It is important to note if valid use is proven for one item within a subclass, the registration for all goods in that subclass may be maintained, because goods or services in same subclass are usually regarded as similar based on the Chinese subclass system .
3). The User:The use must be by the registrant itself or by a licensed user. If a licensee is the user, proof of the license relationship (e.g., a recorded license agreement) must be submitted.
4). The Usage Date: All evidence must fall strictly within the three-year statutory period.
5). Public and Commercial Use: The use must be public, bona fide, and part of a commercial transaction, not merely token or internal use.
It is also important to notethe evidence provided must be able to form a complete chain of evidence. For example, a sales contract alone is not sufficient to prove there is anactual transaction;you also need to provide the corresponding invoice, packing list, delivery note, etc.
5. Strategic Considerations: Identifying the Real Party in Interest
Non-use cancellation actions are often tactical. The filer may be a "strawman"—an individual or entity acting on behalf of a third party with a genuine commercial interest. It is common for an applicant whose trademark application was blocked by the registrant’s mark to file a non-use cancellation.
Identifying the real party in interest is not a legal requirement for defending the cancellation, but it provides strategic insight. It can reveal the commercial pressure behind the action and help the registrant assess whether a settlement agreement might be a viable alternative to pursue. For example, if only some goodsof your trademark conflict with the goods of the applicant, we may negotiate a deal to have the adverse partywithdraw the non-use cancellation action with the exchange that we remove the conflict goods from our trademark. Please note in the past, we would recommend negotiating a deal to have the adverse party withdraw the non-use cancellation action with the exchange that we provide a Letter of Consent or coexistence agreement in their case. However, currently, we do not recommend such negotiation because the CNIPA and the Court now are reluctant toaccept the LOCor coexistence agreement.
6. Alternative: Justifiable Reasons for Non-Use
If a registrant cannot provide use evidence, the registration may still be saved by demonstrating a "justifiable reason" for non-use. The law recognizes narrow exceptions, such as:- Force majeure: Extraordinary events beyond the registrant's control (e.g., natural disasters);
- Government restrictions: Legal or regulatory prohibitions that prevented use;
- Bankruptcy: Legitimate business cessation due to insolvency proceedings.
Economic downturns, internal company restructuring, or simple business delays are generally not considered justifiable reasons.
Conclusion
A non-use cancellation action is a serious challenge to trademark rights in China. The process is unforgiving, with strict deadlines and a high evidentiary burden on the registrant. Success requires a proactive approach: identifying all relevant evidence within the statutory period, ensuring that evidence meets the five essential elements of use, and submitting a comprehensive responsebefore the non-extendable deadline.
Registrants are strongly advised to consult with local counsel to compile and present their evidence effectively, as a well-prepared submission is the only way to ensure the survival of the registration.