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What is the requirement of trademark cancellation in China

A registered trademark can potentially exist in perpetuity- assuming that your trademark mark is kept in proper order. Your registered trademark can become abandoned if you fail to make the proper filings before the China States Patent and Trademark Office (CSPTO). Furthermore, a registered trademark is subject to cancellation by third parties under certain conditions.

The two most common reasons for a trademark cancellation are non-use by the registrant and the mark becoming generic. Although a trademark can indeed exist forever, these trademark rights are subject to continued use in commerce. Substantial non-use in commerce provides the opportunity for third parties to file a cancellation before the CSPTO. The third party would need to properly detail the grounds for such non-use, and provide specific details that clearly show that you have not been using your mark. It is thus important to continue to use your registered trademark in commerce, and make the necessary filings before the CSPTO.

A second ground that can be used to cancel a trademark is that the mark has become generic. This means that your mark has become so associated with the underlying good or service that it is used interchangeably with your mark. Once a registered trademark becomes generic, it is no longer subject to trademark protection- and is thus subject to cancellation. Owners of trademarks, including registered trademarks, should take steps to protect their marks to ensure they do not become generic.

There are other reasons for cancellation, such as fraud in obtaining the registration, which can lead to the cancellation of a trademark at any time. Some registered trademarks, after they have become "incontestable," are more difficult to cancel. Fraud is one allegation that can be brought at any time; however the standards for proving fraud can be at times difficult.

Our law firm has experience bringing and defending against trademark cancellations. It is possible to represent yourself before the CSPTO during a trademark cancellation-- however we recommend using the services of an attorney that is familiar with trademark law and has experience with cancellations.

Based on Article 44 (biz 4) of the Chinese Trademark Law, if a registered trademark is not used in three consecutive years after registration, anyone can file cancellation application against it at the Chinese Trademark Office. Upon receipt of the cancellation application, the Trademark Office will notify the trademark registrant, request it/him to provide, within 2 months upon receipt of the notice, use evidences or justified reasons of non-use in the three years before the cancellation filing date; where there is no use evidences provided or use evidences provided are not valid or there is no justified reasons for non-use, the trademark registration will be cancelled by the Chinese Trademark Office.

Evidence materials include evidence materials of use of the registered trademark by the trademark registrant, as well as evidence materials of use by a third party licensed by the trademark registrant.

Trademark registration cancelled because of three-year's non-use will be published by the Trademark Office, the exclusive right terminates from the date of cancellation decision of the Trademark Office. If the relevant party is not satisfied with the cancellation decision, a review request can be filed at the Trademark Review and Adjudication Board (TRAB), TRAB will then review the decision and make its own decision. If the relevant party is not satisfied with the decision of TRAB, within 30 day upon receipt of the decision, a lawsuit can be filed at the People's Court.

Requirements for filing a cancellation application based on three-year's non-use
1) information of the trademark registration to be challenged;
2) name and address of the applicant in both English and Chinese;
3) one Power of Attorney signed by the applicant (company chop needed for Chinese entity applicant);
4) any investigation results of non-use of the trademark registration to be challenged.

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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.