A review of a cancellation decision is a remedy by which a party, dissatisfied with CNIPA's decision to cancel a registered trademark or its decision not to cancel one, requests the Trademark Review and Adjudication Board to re-examine the matter in accordance with law. It corresponds to the cancellation system in Chapter VI of the Trademark Law on the administration of trademark use, and arises most frequently in non-use cancellation cases, as well as in cases of cancellation for unauthorized alteration of registered particulars.
Legal Basis and Time Limits
Article 54 of the Trademark Law provides: a party dissatisfied with CNIPA's decision to cancel or not to cancel a registered trademark may apply to the Trademark Review and Adjudication Board for review within fifteen days of receiving the notice. The Board shall make a decision within nine months of receiving the application and notify the parties in writing; where an extension is needed due to special circumstances, it may be extended by three months upon approval. A party dissatisfied with the Board's decision may bring a lawsuit before the people's court within thirty days of receiving the notice.
The fifteen-day period is a statutory non-extendable period. The computation of service is governed by Article 10 of the Implementing Regulations: for mail service, the postmark date on which the party received the document governs; if the postmark date is illegible or there is no postmark, service is deemed to occur fifteen days after the document was dispatched; for service by electronic data message, service is deemed to occur fifteen days after the document was dispatched, unless the party can prove the date the document entered its electronic system; where service by announcement is necessary, service is deemed to occur thirty days after the announcement is published. The most easily overlooked rule in practice is the deemed-service rule for electronic service—actual usable time is often much shorter than expected.
Who May Apply for Review
There are two categories of applicants, corresponding to the two types of decisions:
- The registrant's side: where the trademark is cancelled and the registrant disagrees, the registrant may apply for review. This is the most common scenario in non-use cancellation cases;
- The applicant's side: where the non-use cancellation applicant asserts that the other party's trademark should be cancelled but CNIPA decides not to cancel it, the cancellation applicant, if dissatisfied, may likewise apply for review.
In other words, both sides of a non-use cancellation have a remedy; neither side should treat the receipt of a decision as the end of the process.
Evidence in the Review
A review of cancellation is not a simple re-check of the original decision. For a registrant whose registration was cancelled for failure to submit use evidence, the review stage offers a new opportunity to submit trademark use evidence. This is of great practical significance: missing the two-month defense deadline does not necessarily mean the right is inevitably lost—the review is a second chance to produce evidence.
But review-stage proof is still subject to the rules of evidence: the evidence must reflect the trademark sign, the designated goods, and the time, and must point to the three-year period preceding the cancellation filing date. New evidence submitted at the review stage that differs too much from the original defense, without reasonable explanation, will be discounted in probative force. The best strategy is still to organize the evidence properly in one go at the non-use cancellation defense stage.
Differences from Refusal Review
- Targeted acts differ: a cancellation review targets CNIPA's decision to cancel or not to cancel; a refusal review targets the decision to refuse the application and withhold publication;
- Preceding proceedings differ: the preceding proceeding for a cancellation review is non-use cancellation or cancellation for irregular use; for a refusal review it is substantive examination refusal;
- Applicants differ: both parties may apply for a cancellation review, whereas in principle only the applicant may apply for a refusal review;
- Subsequent paths are the same: a party dissatisfied with either review decision may bring an administrative lawsuit before the people's court within thirty days.
Practical Points and Common Pitfalls
One pitfall is treating the cancellation review as a procedure that can be delayed at will. The fifteen-day period is short in itself, and with the deemed-service rules, the time left for preparing materials is usually only about ten days.
Another pitfall is writing only conclusions in the review application without attaching evidence, or submitting evidence that does not correspond to the three-year period preceding the cancellation filing date. The standard for deciding the review is the same as in the original non-use cancellation proceeding—in the end it comes down to the single question of "whether there was genuine use within three years."
For registrants, upon receiving a cancellation decision, immediately do two things: verify the service date to determine the review deadline, and inventory all usable use evidence from the three-year period, organizing it into a chronological list. For non-use cancellation applicants, if the result received is non-cancellation, likewise assess the cost-effectiveness of a review, especially where the other party has supplemented strong evidence.
The practical judgment behind these concepts must be tailored to the individual case; before proceeding, you may book a registered agent via MyTMBee for targeted analysis.