Invalidation is a remedy 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, harms another party's prior rights, or constitutes an improper registration. The exclusive right of a trademark declared invalid is deemed never to have existed.
Two Ways of Initiation
Pursuant to Articles 44 and 45 of the Trademark Law, there are three typical ways an invalidation can be initiated:
- Declaration by CNIPA ex officio: where a registered trademark violates absolute provisions (prohibited signs, lack of distinctiveness) or was registered by fraudulent or other improper means, CNIPA may declare it invalid on its own initiative;
- Request by anyone based on absolute grounds: where an entity or individual finds that a registered trademark presents any of the above absolute-grounds issues, it may request the trademark review and adjudication authority to declare it invalid, with no time limit;
- Request by a prior rights holder based on relative grounds: where a registered trademark harms prior rights, the prior rights holder or an interested party may request invalidation within five years of the registration date; for bad-faith registrations, the owner of a well-known trademark is not bound by the five-year limit.
Relationship Between Invalidation and Opposition
The substantive grounds of the two procedures overlap substantially; the difference lies in the procedural timing: opposition targets trademarks published in a preliminary approval announcement that are not yet registered, and must be filed within three months of the announcement; invalidation targets trademarks already registered. After an opposition fails, invalidation is the opponent's principal follow-up remedy.
Legal Consequences of Invalidity
Under Article 47, the exclusive right of a registered trademark declared invalid is deemed never to have existed. However, in principle it has no retroactive effect on judgments already enforced or on assignment or license contracts already performed before the declaration; where the registrant acted in bad faith and caused losses to others, it shall pay compensation.
Typical Application Scenarios
Squatting another's trademark that has acquired a certain influence, an agent squatting its principal's trademark, infringing prior copyright or name rights, imitating a well-known trademark, and mass trademark stockpiling are all high-frequency scenarios for invalidation.
If you are facing the above issues, you may first handle an invalidation on MyTMBee to confirm feasibility before deciding whether to file, avoiding blind filings that waste official fees.