Invalidation on absolute grounds is the system by which a registered trademark with defects concerning public order and the registration order is declared invalid by CNIPA on its own initiative, or upon request by any entity or individual to the Trademark Review and Adjudication Board. Its greatest features are two "nots": it does not matter who requests it, and it does not matter how much time has passed. For this reason, it is the most powerful tool for clearing hoarded trademarks and combating malicious registration.
Legal Basis and Applicable Provisions
Article 44(1) of the Trademark Law provides: a registered trademark that violates Articles 4, 10, 11, 12, or 19(4) of this Law, or that was obtained by fraud or other improper means, shall be declared invalid by CNIPA; other entities or individuals may request the Trademark Review and Adjudication Board to declare the registered trademark invalid.
Absolute grounds correspond to provisions concerning the public interest and having nothing to do with any particular prior rights holder:
- Article 4: bad-faith trademark applications not intended for use;
- Article 10: signs that may not be used as trademarks, such as state names, signs with ethnic discrimination, deceptive signs, or signs detrimental to socialist morality or customs or having other adverse effects;
- Article 11: signs lacking distinctive features, such as signs consisting solely of the generic name, device, or model of the goods, or merely directly indicating quality, main raw materials, function, intended purpose, or other characteristics;
- Article 12: three-dimensional signs lacking distinctive features, such as shapes resulting solely from the nature of the goods themselves;
- Article 19(4): trademark agencies applying to register trademarks beyond the scope of agency services;
- Obtained by fraud or other improper means: such as forged materials or false entity information, or registration conduct involving large-scale hoarding or profit-seeking.
Note that Article 4 was newly incorporated into the scope of Article 44 by the 2019 amendment, enabling bulk-hoarded trademarks to be cleared directly.
Two Initiation Methods and Procedural Time Limits
- Invalidation declared by CNIPA on its own initiative: CNIPA's decision shall be notified to the parties in writing; a party dissatisfied may apply to the Trademark Review and Adjudication Board for review within fifteen days of receiving the notice, and the Board shall make a decision within nine months of receiving the application, extendable by three months in special circumstances; a party dissatisfied with the review decision may bring a lawsuit before the people's court within thirty days of receipt.
- Invalidation requested by anyone: after receiving the request, the Trademark Review and Adjudication Board shall notify the interested parties in writing and set a time limit for defense; the Board shall make a ruling maintaining the registration or declaring it invalid within nine months of receiving the request, extendable by three months in special circumstances; a party dissatisfied with the ruling may bring a lawsuit before the people's court within thirty days of receipt.
Note that the examination period here is nine months (extendable by three months), shorter than the twelve months (extendable by six months) for invalidation on relative grounds.
Legal Consequences
Under Article 47, a registered trademark declared invalid shall be announced by CNIPA, and the exclusive right to the registered trademark is deemed never to have existed. However, infringement judgments, rulings, and mediation statements already executed by the people's courts, and trademark assignment or licensing contracts already performed, are in principle not retroactively affected; losses caused to others by the registrant's malice shall be compensated; and where non-return of relevant fees would obviously violate the principle of fairness, the fees shall be returned in whole or in part.
Distinction from Invalidation on Relative Grounds
- Requesting party: absolute grounds may be invoked by any entity or individual; relative grounds are limited to prior rights holders or interested parties;
- Time limit: absolute grounds are not subject to any time limit; relative grounds are in principle subject to five years from the date of registration;
- Examination period: nine months, extendable by three months for absolute grounds; twelve months, extendable by six months for relative grounds;
- Protected interest: absolute grounds safeguard the registration order and public interest; relative grounds protect the prior rights of specific parties.
Practical Points and Common Pitfalls
One pitfall is treating "bad-faith applications not intended for use" as a relative ground, supposing only the party whose mark was squatted may invoke it. In fact it is an absolute ground, and any party may request invalidation on that basis.
In practice, Article 44(1) is the main path for clearing malicious hoarders: first compile statistics from public channels on the number of trademarks in the other party's name, the distribution across classes, and assignment records; then build a complete chain of evidence of "other improper means" with facts such as bulk registration, absence of genuine use, and intent to profit—often more persuasive than arguing similarity item by item.
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.