Invalidation is a legal procedure in which a trademark that has been approved for registration is declared invalid by CNIPA ex officio or upon a party's request because it violates the prohibitive provisions of the Trademark Law or harms another party's prior rights. The exclusive right to use a trademark declared invalid is deemed never to have existed.
Legal Basis and Types
Articles 44 and 45 of the Trademark Law provide for the invalidation system, which falls into three categories by manner of initiation and grounds:
- Invalidation ex officio (Article 44): where a registered trademark violates absolute provisions (prohibited signs, lack of distinctiveness) or was registered by fraudulent or other improper means, CNIPA declares it invalid on its own initiative;
- Invalidation upon request based on absolute grounds (Article 44): any entity or individual may request the trademark review and adjudication authority to declare the trademark invalid, with no time limit;
- Invalidation upon request based on relative grounds (Article 45): a prior rights holder or an interested party requests invalidation on grounds such as harming prior rights or squatting, filed within five years of the trademark's registration; for bad-faith registrations, the owner of a well-known trademark is not bound by the five-year limit.
Common Grounds for Invalidation
- Conflict with a prior registered trademark (Article 30);
- Infringement of prior copyright, name rights, portrait rights, design patent rights, or trade name rights (former part of Article 32);
- Squatting a trademark that another party has used earlier and that has acquired a certain influence (latter part of Article 32);
- Squatting by agents, representatives, or parties in specific relationships (Article 15);
- Imitation of well-known trademarks (Article 13);
- Bad-faith applications not intended for use (Article 4);
- Registration obtained by fraudulent or other improper means (Article 44(1)).
Procedure
- The petitioner submits the Application for Invalidation of a Registered Trademark, proof of qualification, and evidence, and pays the official fee (RMB 750 per class for paper filing, RMB 675 per class for online filing);
- After accepting the case, the trademark review and adjudication authority serves a defense notification on the respondent (the registrant), who defends within the prescribed period;
- After examination, a ruling is issued either maintaining the registration or declaring it invalid;
- Either party dissatisfied with the ruling may file an administrative lawsuit with the people's court within the statutory time limit.
Legal Consequences (Article 47)
The exclusive right to use a registered trademark declared invalid is deemed never to have existed. However, infringement judgments already enforced by courts and assignment or license contracts already performed before the declaration are in principle not retroactively affected; where the registrant's bad faith caused losses to others, compensation shall be paid; and where it clearly violates the principle of fairness, the corresponding fees shall be refunded.
Distinctions from Adjacent Procedures
- Versus opposition: opposition occurs before registration with a three-month limit; invalidation occurs after registration;
- Versus non-use cancellation: non-use cancellation examines only whether the trademark was genuinely used without a three-year gap after registration—it does not examine the legitimacy of the registration;
- Versus cancellation (deregistration): deregistration is the registrant's voluntary abandonment or failure to renew upon expiry, with no adversarial character.
Practical Value
Invalidation is the principal tool for clearing squatted trademarks and removing obstacles to one's own registration. When an application is refused because a squatted prior trademark stands in the way, the "invalidation + new application" combination is the standard play; against bad-faith stockpilers, the Article 44 path can clear trademarks from their portfolio in batches.
The practical judgments behind this concept depend on the individual case; before proceeding, you may book a registered agent on MyTMBee for a targeted analysis.