Recent Surge in Chinese “Non-Use” Cancellation ProceedingsAugust 10, 2023

In the past several years the total number of new trademark filings in China has exploded—with about nine million filings now made per year. An unfortunate consequence of this upsurge in filings is that non-use cancellation actions have become a normal strategy for trademark applicants who have received provisional refusals based on earlier registered marks. If the current registrant cannot establish evidence of actual commercial use of the mark in the prior three-year period, their registration is vulnerable to cancellation.

Therefore, it is more imperative than ever that entities/individuals who own Chinese Trademark Registrations continually make ongoing use of their marks in mainland China and maintain record evidence of the same. Sufficient sales evidence often includes sales contract and the related invoices and the mark and date should be shown on these materials. Promotional materials may be helpful to evidence use if such materials (a) include the dates of promotion, and (b) are in Chinese language.

If any mark you own has not yet been used in China (or has not been used for 3 consecutive years) and you still desire to protect the mark in China against the possible non-use attacks, it is recommended to consider re-filing a new application for the same mark as a backup. If the new application is successfully registered, you would obtain a fresh registration date which will be safe from the aforesaid non-use cancellation for another three years.

Christine Lebron-Dykeman is the head of MVS’s Trademark Department. Christine specializes in national and international trademark protection and intellectual property litigation. You can reach her at christine.lebron-dykeman@ipmvs.com.