Use of a trademark refers to applying a trademark to goods, to packaging or containers of goods, or to transaction documents, or using it in advertising, exhibitions, and other commercial activities in order to identify the source of goods. This is the statutory definition given in Article 48 of the Trademark Law, and it is a foundational concept that recurs throughout the trademark law system.
The Two-Part Structure of Article 48
This definition consists of two parts—"manner of conduct" and "purpose of conduct"—and both are indispensable:
- Manner of conduct: affixed to goods, packaging, containers, or transaction documents, or used in advertising, exhibitions, and other commercial activities;
- Purpose of conduct: to identify the source of goods.
Conduct that merely occurs in commercial activities but does not serve to identify source is not use in the trademark-law sense.
The Boundary Between Trademark Use and Internal Use
A frequent dispute in practice is whether a given act constitutes trademark use, or merely internal use or descriptive use.
- Trademark use: use directed at the relevant public for the purpose of identifying source. Examples include brand logos on goods, marks on packaging, brand display in main images and detail pages of online stores, shop signs, exhibition materials, and advertising creatives;
- Internal use: marks appearing on internal corporate documents, in internal management systems (ERP, OA), on purchase orders, and on employee badges. Such use is not directed at the relevant public and generally does not constitute use under trademark law; it can neither maintain a registration nor prove reputation;
- Descriptive use: use of descriptive words contained in another's trademark to describe the characteristics of one's own goods is fair use (Article 59) and does not constitute trademark use.
The Triple Significance of Use in Trademark Law
- Maintaining registration: under the second paragraph of Article 49, where a registered trademark has not been used for three consecutive years without justified reason, any entity or individual may apply to CNIPA for cancellation of the registration. The "use" required here is trademark use; token or perfunctory use is not recognized;
- Blocking others' registration: Article 32 prohibits preemptively registering, by unfair means, another's trademark that has already been used and has gained a certain influence; the third paragraph of Article 59 grants a prior user the right to continue use within the original scope. Both presuppose genuine and influential use;
- Finding infringement: the constitutive elements of the infringing acts listed in Article 57 all presuppose that the accused conduct constitutes trademark use; conduct that does not constitute trademark use generally falls outside the scope of infringement.
Use Evidence: Retention Points and Common Pitfalls
Retaining Valid Use Evidence
Evidence must simultaneously show "who used it, on what goods, at what time, and directed at whom." Commonly accepted materials include: photos of physical goods and packaging bearing the brand, e-commerce product pages and transaction records, invoices and sales contracts (which must reflect the trademark or the corresponding product name and have been actually performed), advertising contracts and creatives, exhibition photos and participation certificates, and media coverage. Evidence should form a chronological chain; avoid concentrating it in a single year, which could create a "three-year non-use" defense gap.
Common Pitfalls
- Believing registration alone preserves the right: long-term non-use after registration exposes the mark to cancellation by others at any time;
- Keeping contracts but not performance evidence: licensing or procurement contracts alone cannot prove the trademark has entered market circulation;
- Use outside the designated goods: use outside the designated goods cannot maintain the registration for those designated items;
- Using a modified mark: actual use of a mark differing materially from the registered mark may not be recognized as use of the registered trademark.
Practical Points
Incorporate trademark use into daily operations: when products launch, packaging is finalized, stores are decorated, and advertising is placed, simultaneously retain brand-bearing physical photos and page screenshots, archived by year. Also mark the registration symbol in use—under the second paragraph of Article 9, the registrant is entitled to indicate "registered trademark" or the registration symbol. Proper use both maintains the right and ensures you hold evidence when you need to prove it.
How these concepts apply in specific cases still involves detailed differences; you may consult a registered agent via MyTMBee for case-specific analysis.