Pursuant to Article 49, Paragraph 2 of the Trademark Law of the People's Republic of China, if a registered trademark has not been genuinely used for three consecutive years without justifiable reason, any entity or individual may file an application with the China National Intellectual Property Administration (CNIPA) to cancel the said trademark. This is commonly referred to as the "Non-Use Cancellation" procedure. The purpose of this legal mechanism is to eliminate unused or "deadwood" trademarks, revitalize dormant intellectual property resources, release distinctive trademark elements, and uphold a fair and competitive market order. In commercial practice, numerous registered trademarks are never genuinely used, yet they become obstacles to newly developing brands seeking registration. The Non-Use Cancellation procedure serves as an effective legal tool to resolve such issues.
I. Why File Non-Use Cancellation?
For enterprises in the process of brand portfolio development, a common predicament arises when a meticulously designed trademark application is refused due to the likelihood of confusion with prior citations. Upon further investigation, however, it may be discovered that goods or services bearing the cited trademark have not appeared on the market for several consecutive years. In such circumstances, the Non-Use Cancellation procedure becomes the optimal legal remedy to remove the barrier. If the applicant succeeds in cancellation action, the refused trademark application may have a chance to get registered.
II. Detailed Explanation of the Non-Use Cancellation Procedure
The Non-Use Cancellation procedure generally consists of the following steps:
Step One: Preliminary Investigation and Preparation
Since 2025, the CNIPA has revised its formal examination standards for non-use cancellation applications. Previously, applicants were only required to provide a simple explanation that the trademark was not in use, with the burden of proof primarily falling on the trademark owner. Under the latest practice, the applicant must provide a relevant explanation accompanied by preliminary investigative evidence demonstrating the non-use of the subject trademark for three consecutive years. Therefore, prior to formally filing the application, it is necessary to conduct a preliminary investigation into the use status of the subject trademark, including online searches, e-commerce platform inquiries and so on, to collect preliminary evidence of non-use for three consecutive years. This satisfies the applicant's preliminary evidentiary burden under the non-use cancellation procedure and is crucial for assessing the likelihood of success.
Step Two: Filing the Non-Use Cancellation Application
Submit the required application information, documents, a statement of facts and circumstances, and relevant preliminary non-use evidence to the CNIPA.
Step Three: CNIPA’s Acceptance and Notification
Upon receiving the application, the CNIPA will conduct a formal examination. If the application meets the formal requirements, it will be accepted. The CNIPA will then issue a "Notice to Submit Evidence of Use" to the trademark registrant, requiring the registrant to submit genuine evidence of use of the subject trademark during the designated three-year period within two months from the receipt of the notice.
Step Four: Registrant's Response and Submission of Evidence
If the registrant wishes to maintain the validity of the trademark, they shall submit valid evidence of use within the prescribed time limit. If the non-use was due to force majeure or other justifiable reasons, relevant supporting documentation must be submitted.
Step Five: Examination and Decision
The CNIPA will examine the evidence submitted by the registrant. If the registrant fails to submit evidence of use or the submitted evidence is determined invalid, the CNIPA will issue a decision to cancel the trademark. If the registrant disagrees with the decision, they may file a request for review on the cancellation decision within fifteen days from the date of receiving the decision.
If the registrant fails to file a review within the stipulated time limit, the cancellation decision will become final. The CNIPA will issue the publication of cancellation within approximately 2 to 4 months, which means the trademark has been invalid.
III. List of Required Documents
The following documents are typically required for filing a non-use cancellation application:
3.1 Application Form for Cancellation of Registered Trademark for Non-use for Three Consecutive Years: The application must contain the registration number and class of the trademark, as well as the facts and grounds for the cancellation.
3.2 Preliminary Investigation Evidence: This includes materials demonstrating the non-use of the trademark, such as basic information of the registrant, the trademark's registration status, screenshots of online search results, and screenshots of e-commerce platform search results.
3.3 Letter of Commitment: A document on which the cancellation applicant and its agency (if any) co-declare that they have not concealed the true identity of the cancellation applicant or any material facts from the CNIPA, and that the information and materials submitted are true, accurate, and complete.
3.4 Proof of the Applicant's Identity:
3.4.1 Applicants from Mainland China: An entity applicant must submit a copy of its business license bearing the entity's official seal. A natural person applicant must submit a copy of his/her valid ID card and a copy of their individual business license (if applicable).
3.4.2 Applicants from Hong Kong, Macau, or Taiwan: An entity applicant must submit a certificate of incorporation/existence issued by the company registry. A natural person applicant must submit a copy of his/her valid ID card or passport.
3.4.3 Foreign Applicants: An entity applicant must submit the certificate of incorporation/existence issued by the local company registry of its home jurisdiction. A natural person applicant must submit a copy of his/her valid ID card or passport.
3.5 Power of Attorney: If the applicant is represented by an agency, a duly executed power of attorney must be provided.
The non-use cancellation procedure is an effective strategic tool in an entity’s trademark portfolio planning. The proper use of such tool can help overcome registration bottlenecks. If you are currently facing registration obstacles due to dormant trademarks, please do not hesitate to contact us. Our professional team will tailor a non-use cancellation and registration strategy for you, helping you swiftly remove the barriers on the path of your brand development.
