1. Legal Basis of Non-use cancellation application
Article 49 of the Chinese Trademark Law provides that “Where a registered trademark has not been put in use for three consecutive years without a justifiable reason, any entity or individual may apply to the trademark office for cancellation of the registered trademark“. Usually, we call such application “non-use cancellation application”.
2. Evolution of “Non-use cancellation application” Procedure
A cancellation application is usually filed by an applicant to help remove obstacles for his own trademark registration. For example, if the applicant finds out potentially conflicting trademarks before filing a registration application, he may file a cancellation application to remove the prior trademark in advance. Or, if a filed trademark application is rejected due to the existence of a prior trademark, the applicant may file a cancellation application against the prior trademark while filing a review of the rejection. After the prior trademark is canceled, the applicant's own application may be approved.
For a long period of time, in cases where both refusal review and cancellation against cited mark were both filed, because the trial cycle of cancellation is longer than that of refusal review, and the Trademark Office has not stipulated that the refusal review should wait for the cancellation, so a large number of refusal review cases are concluded before the cancellation case. At this time, the cited trademark is still effective, making it impossible for the rejected trademark to be registered. As a result, the application for cancellation not only failed to remove obstacles, but also led to empty procedural cycles and waste of resources.
In order to solve the above problems, in June 2023, the Trademark Office issued the “Standards for Suspension of Review Cases”, which clearly stipulates that in the case of refusal review, if the status of the cited trademark must be based on the results of another case being tried by the people's court or handled by the administrative authority, and the applicant explicitly requests for suspension of the trial, the case of refusal review should be suspended and resumed when the suspension circumstance is removed. This means that the refusal review procedure can be conducted after the cancellation application has a result, and the cancellation application can truly play the role of removing the obstacles to the application.
After the implementation of the “Standards for Suspension of Review Cases”, the number of cancellation applications has increased dramatically, including some arbitrary and malicious cancellations. Trademark registrants were overwhelmed with responses to cancellations, and the examination efficiency of the Trademark Office also decreased. In order to regulate the cancellation application and avoid the malicious cancellation actions, the Trademark Office added new requirements for the cancellation procedure in 2025.
3. New Requirements for the Non-use cancellation Application
Compared with the previous requirements, the application for cancellation has the following new changes:
(1) Increase the burden of proof on the applicant
Previously, the applicant was only required to submit simple clues that “the registered trademark has not been used for three consecutive years”, such as several screenshots of search engine (e.g., Baidu). Now the Trademark Office requires the applicant to submit preliminary evidence to prove that the registered trademark has not been used for three consecutive years, otherwise face the risk of correction or rejection.
(2) Higher requirements for investigation evidence
Previously, the applicants only need to submit simple evidence clues, with no strict regulations on content and quantity of evidence. Now the applicant is required to provide persuasive preliminary investigation evidence, including but not limited to information of business scope, operational status or existence status of the trademark registrant, market research report on the registered trademark. The research shall be conducted not only through professional search platforms, but also through searches of the registrant's official website, WeChat, e-commerce platforms, offline production and operation sites, market research, on-site investigation etc. For online search, evidence from more than three platforms (such as Baidu, Taobao, WeChat, etc.) shall be provided, with continuous and complete screenshots from the homepage to page 5 for each platform.
(3) Commitment on the authenticity of evidence
The new requirements stipulate that the applicant and the agent should sign a commitment on the authenticity of the investigation and materials, and bear the legal responsibility for the authenticity of the submitted documents. If false materials are provided, they may face credit discipline or even administrative penalties.
(4) Disclosure of related cases
The new requirements stipulate that the applicant for non-use cancellation and the trademark to be canceled should have a related relationship, such as the trademark was preemptively registered, rejected, etc. The applicant needs to state the application number and status of the related cases when filing the non-use cancellation application.
4. Suggestions on Non-use cancellation application
To summarize, now the threshold of trademark cancellation application has been raised, the difficulty increases and the cost is also high. The applicant should conduct a preliminary investigation before filing a cancellation application. If obvious traces of trademark use are found or it is judged based on the investigation evidence that the trademark is likely to be in use, it is not recommended to file the cancellation application.
There are still ambiguities in the new requirements for cancellation, and many problems will be encountered in actual operation. For example, the operation and existence status of foreign registrants is not easily accessible, the use of the trademark searched on the Internet may not be the actual use of the trademark, and it is not clear which situation should be investigated on the spot. If the preliminary investigation report submitted by the trademark applicant does not meet the requirements, the Trademark Office will issue a notice of correction. So there is no need to worry about not being able to produce a qualified investigation report at the beginning, and the applicant will have the opportunity to make corrections and additions after receiving the notice of correction.
