Non-use cancellation, short for "cancellation for three consecutive years of non-use," is provided in 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.
Purpose of the Regime
The trademark system is use-based. The non-use cancellation regime aims to clear trademarks that have sat idle for a long time after registration, release occupied registration resources, curb trademark hoarding and bad-faith squatting, and prompt registrants to genuinely put their trademarks into commercial use.
Constituent Elements
- Object: a registered trademark that has been registered for at least three years (a non-use cancellation cannot be filed before three years have elapsed);
- Status: no genuine commercial use on the designated goods during the three consecutive years counting back from the cancellation application date;
- No legitimate reason: no objective obstacles to use such as force majeure, policy restrictions, or bankruptcy liquidation;
- Applicant: any entity or individual, with no requirement of an interest in the matter.
Procedure
- The applicant files a cancellation application with the CNIPA, stating the reasons;
- The CNIPA accepts it and notifies the registrant to submit evidence of use or an explanation of legitimate reasons within two months;
- The registrant responds, and the CNIPA examines the evidence;
- A decision is issued to maintain or cancel the registration (including partial cancellation of some goods);
- A party dissatisfied with the decision may apply for review, and a party dissatisfied with the review decision may bring an administrative lawsuit in court.
Key Rules
- Reversed burden of proof: the registrant must prove the facts of use, while the applicant essentially needs no evidence — making non-use cancellation an extremely low-cost attack tool;
- Evidence standard: genuine, lawful, and valid commercial use is required; token use is not recognized;
- Partial cancellation: if evidence of use exists for only part of the designated goods, the registration for the remaining goods is cancelled;
- Consequence: for a cancelled registered trademark, the exclusive right terminates as of the effective date of the CNIPA's cancellation decision.
Both Sides: Offense and Defense
As a weapon: when a new application is refused by citation of an earlier trademark, filing a non-use cancellation against the cited mark is the standard clearance measure; it can also be used to clear squatted idle trademarks.
As a risk: idle defensive registrations under a company's name, old brands no longer in operation, and trademarks used only internally are all high-risk targets for non-use cancellation.
Defense Essentials
Keep core trademarks in genuine use and retain annual evidence; defensive trademarks can be maintained through licensing or placements combining token and substantive use; be sure to respond within the two-month deadline upon receiving a defense notice; and regularly review the use status of trademarks under your name.
The application of related concepts in practice involves detailed differences; before acting, you can consult a registered agency at MyTMBee for a targeted analysis.