Trademark Wiki / 审查与驳回

Case Analysis: Overturning a Refusal at Review After the Cited Trademark Is Cancelled for Three Years of Non-Use

CasePublished 2026-09-17 · Updated 2026-09-17

A typical case in which a cited trademark registered for over three years without use was successfully cancelled, removing the refusal obstacle and leading to preliminary approval of the applied trademark at review; the key lies in coordinating the timing of the non-use cancellation and the refusal review.

In refusal cases on relative grounds, "filing a non-use cancellation against the cited trademark + requesting suspension of the refusal review" is the most classic combined strategy. Once the cited trademark is cancelled for three consecutive years of non-use, the factual basis for the refusal disappears and the applied trademark is approved accordingly. Below is an analysis of how this turnaround path typically operates and its key milestones.

Typical Scenario

An application is refused for being similar to a prior registered trademark. Investigation shows that the cited trademark has been registered for over three years, its owner has shown no sign of actual business operation for a long time, and no trace of use can be found through public channels — a typical "dormant trademark".

How the Turnaround Path Works

Step 1: Assess the Feasibility of Non-Use Cancellation

Immediately after receiving the refusal notice, examine the cited trademark:

  • Whether it has been registered for three full years (counted from the registration publication date);
  • Search for traces of use across e-commerce platforms, search engines, corporate registries, and other channels;
  • The status of the rights holder: whether it has been deregistered, is unreachable, or has ceased business.

If no valid trace of use can be found, the probability of a successful cancellation is high and the action is worth initiating.

Step 2: Launch the Cancellation and the Review in Parallel

  • Under Article 49 of the Trademark Law, file an application with the CNIPA to cancel the cited trademark for three consecutive years of non-use;
  • At the same time, duly file the refusal review application within the 15-day time limit;
  • In the review proceedings, submit the notice of acceptance of the cancellation application and request suspension of the review pending the cancellation outcome.

Step 3: Win the Cancellation

In non-use cancellation proceedings, the burden of proof rests on the registrant of the cited trademark, who must submit evidence of genuine use during the designated three-year period. Owners of dormant trademarks often:

  • Fail to respond (deemed a waiver, and the trademark is cancelled);
  • Fail to produce qualifying evidence of use within the three-year period;
  • Submit evidence found insufficient to maintain the registration.

Once the cancellation decision takes effect, the cited trademark right is extinguished or lapses, and the refusal ground loses its factual basis.

Step 4: Reap the Result at Review

Based on the cancellation outcome, the review authority finds that the refusal obstacle has been removed and grants preliminary approval to the applied trademark.

Key Points on Timing

  1. File the cancellation as early as possible: cancellation proceedings usually take several months to a year, while the statutory review period is nine months; a late cancellation filing may miss the review conclusion;
  2. Suspension must be actively requested: if you do not proactively submit the notice of acceptance of the cancellation and explain the circumstances, the review authority may issue a decision upholding the refusal before the cancellation outcome arrives;
  3. There is a fallback even in failure: even if the review fails first, refiling after a successful cancellation, or arguing the turnaround in administrative litigation on the basis of the changed rights status, are both common follow-ups.

Practical Takeaways

  • A considerable proportion of cited trademarks are dormant marks vulnerable to non-use cancellation; a cancellation assessment should be a standard step in any similarity refusal case;
  • A cancellation application itself is low-cost and low-risk — the most cost-effective peripheral measure in responding to refusals on relative grounds;
  • In cases with multiple cited trademarks, assess each and file cancellations one by one against those in weak standing, defeating them individually.

For the specific handling of the matters above, you may book a refusal review assessment on MyTMBee, where a registered trademark agent will provide full-process assistance.