Will a Trademark Really Be Cancelled After Three Consecutive Years of Non-Use?

Question

Accepted Answer

Yes. Article 49 of the Trademark Law provides that where a registered trademark has not been used for three consecutive years without a legitimate reason, anyone may apply for its cancellation, and the burden of proof rests on the trademark registrant.

Yes. Under Article 49(2) of the Trademark Law, where a registered trademark has not been used for three consecutive years without a legitimate reason, any entity or individual may apply to the CNIPA for cancellation of that registered trademark. This is not a theoretical risk but one of the most frequently occurring administrative procedures in trademark practice.

How the Procedure Works

1. Anyone files a cancellation application with the CNIPA, stating the circumstances;
2. After accepting the application, the CNIPA notifies the trademark registrant, requiring them to submit, within two months of receiving the notice, evidence of use of the trademark during the three years preceding the filing of the cancellation application, or an explanation of the legitimate reason for nonuse;
3. If the registrant submits evidence, the CNIPA examines whether the evidence suffices; if no submission is made on time or the evidence is insufficient, the CNIPA issues a cancellation decision;
4. A party dissatisfied with the decision may apply to the trademark review and adjudication department for review, and may further bring an administrative lawsuit.

The Burden of Proof Rests on the Registrant

In a nonuse cancellation (three consecutive years of nonuse) procedure, the applicant bears almost no cost, while the registrant must produce genuine, lawful, and valid evidence of commercial use. Without evidence, the trademark will be cancelled, and the exclusive right to use the trademark terminates as of the effective date of the cancellation decision.

What Counts as a "Legitimate Reason"

Objective causes that make use impossible — such as force majeure, policybased restrictions, or bankruptcy liquidation — may be raised as a legitimate reason defense; poor business performance or voluntary suspension of production generally does not constitute a legitimate reason.

Preventive Recommendations

Maintain genuine use of the trademark on the designated goods and retain evidence eve