Cancellation for non-use for three consecutive years, known in practice as "san-san," is the mechanism the Trademark Law created to clear idle trademarks that are "registered but unused": where a registered trademark has not been used for three consecutive years without justified reason, any entity or individual may apply to CNIPA for its cancellation. Its threshold is extremely low and the burden of proof rests on the registrant; it is both a powerful obstacle-clearing tool for applicants and the greatest day-to-day risk facing enterprises' existing trademark portfolios.
Legal Basis
Article 49(2) of the Trademark Law provides: where a registered trademark becomes the generic name of its designated goods, or has not been used for three consecutive years without justified reason, any entity or individual may apply to CNIPA for cancellation of the registration. CNIPA shall make a decision within nine months of receiving the application, extendable by three months upon approval in special circumstances.
Article 66 of the Implementing Regulations further prescribes the procedure: an application for cancellation shall state the relevant circumstances; after accepting the application, CNIPA shall notify the trademark registrant, limiting it to two months from receipt of the notice to submit evidence of use of the trademark before the cancellation application was filed, or to explain the justified reason for non-use; if no use evidence is provided upon expiry, or the evidence is invalid and no justified reason exists, CNIPA shall cancel the registration. An application based on non-use for three consecutive years without justified reason may only be filed after three years have elapsed from the date of publication of the registration announcement.
Constitutive Elements
- Object: a registered trademark that has been registered for at least three years; trademarks less than three years from the registration announcement cannot be challenged;
- Period: three consecutive years counted back from the cancellation filing date, during which there was no genuine commercial use;
- No justified reason: no objective obstacles to use such as force majeure, policy restrictions, or bankruptcy liquidation;
- Applicant qualification: any entity or individual; no interest in the trademark is required;
- Burden of proof: borne by the registrant; the applicant in principle need not produce evidence.
Use Evidence Requirements and Partial Cancellation
Article 48 of the Trademark Law defines trademark use: applying the trademark to goods, packaging or containers of goods, or transaction documents, or using it in advertising, exhibitions, and other commercial activities, for the purpose of identifying the source of goods.
Valid use evidence must therefore satisfy at least three points:
- The trademark sign is visible: the evidence must show the representation of the challenged trademark;
- The goods or services are shown: falling within the scope of the designated items;
- The time is shown: clearly falling within the designated three-year period, and preferably forming a continuous chronological chain.
Common types of evidence include: product packaging and photos bearing the trademark, sales contracts with corresponding invoices, back-end transaction data from e-commerce platforms, advertising contracts and materials, and exhibition booths and promotional materials. Internal documents between affiliated companies alone, invoices without product information, or obviously token use in small quantities are usually not recognized as genuine use.
Cancellation is examined item by item. If the registrant provides valid use evidence for only some of the designated goods, the registration for the remaining goods may still be cancelled. This means that stuffing a trademark with a large number of defensive items can produce losses far beyond expectation once cancellation is filed.
Distinction from Neighboring Concepts
- From invalidation: non-use cancellation examines only whether there was genuine use, not whether the registration was legitimate; invalidation examines the lawfulness of the registration itself;
- From voluntary cancellation: cancellation on one's own initiative is the registrant giving up the right; non-use cancellation is compulsory clearing initiated by others;
- From the prior-use defense: non-use cancellation is an administration procedure after registration; the prior-use defense is a defendant's defense in infringement litigation.
Offense and Defense in Practice
The attacking side: when a new application is refused on the basis of a cited trademark, filing non-use cancellation against the cited trademark is the lowest-cost means of clearing the obstacle; it is usually combined with invalidation, choosing between them according to whether the other party's trademark is idle or squatted.
The defending side: upon receiving the Notification to Provide Use Evidence for a Registered Trademark, evidence must be submitted within two months—missing the deadline is tantamount to giving up. Core trademarks should be used genuinely, in a standardized way, and continuously, with annual evidence archiving; defensive trademarks can be kept in use through licensing to others, genuine advertising, and similar means.
A party dissatisfied with a decision to cancel or not to cancel may apply for a review of the cancellation decision under Article 54 of the Trademark Law within fifteen days of receiving the notice.
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.