MAINLAND CHINA

I want to cancel trademark rights

Cancellation of the trademark.

Someone is not using a trademark and you want to cancel it?
Unused trademark conflicts with your trademark registration?

Cancellation of trademark rights in China

According to the letter of Chinese law, a trademark can be invalidated if it is not used. The key factor is the length of time that has elapsed since protection was granted.

The process of trademark invalidation in China can only be initiated three years after registration. It is initiated at the request of an interested party. Both individuals and legal entities from China and around the world are eligible to file such an application. At Trademark Partners, we assist our clients in the smooth handling of all trademark invalidation formalities.

Consequences of not using a trademark

Registering and maintaining your trademark rights is a priority if you plan to do business in China. It is important to remember that under Chinese law, non-use of a trademark for three years can result in the owner being cancelled, so evidence of use of the trademark should be gathered.

Who is most likely to file a trademark cancellation application and when?

Anyone has the right to apply for cancellation of a trademark in China. This is most often requested when cancelling the registration of a trademark is part of a procedural strategy. This may be the case if the registered, unused trademark is in conflict with one’s own subjective mark. In this case, the first step is to cancel the rights of the conflicting mark, and only in the next step can you obtain protection for your mark on the basis of a new application.

It should be added that the mere filing of an application for revocation does not automatically result in the cancellation of the mark. The decision will only be made after examination by the Chinese Trademark Office (CNIPA).

How do you justify a request for cancellation of a trade mark? Who decides on the revocation of a trade mark?

No justification is required for filing a request for cancellation of a trademark. According to the procedure, the CNIPA notifies the proprietor of the mark of the request for cancellation. In order to maintain the registration, the owner must provide credible evidence of use of the mark in Mainland China within a specified period of time. If the owner is not satisfied or does not respond to the request, the Office will cancel the trademark.

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Quick
knowledge station

Can a mark registration be cancelled in China if it is not used?

Yes, you can. All you have to do is file an application for cancellation on the grounds of non-use for three years. It is then up to the opponent, the owner of the mark, to prove that the mark has been used. If he fails to do so, his registration will be cancelled.

When can an application to cancel a mark in China be filed?

An application can only be submitted when the mark has had a valid registration for a minimum of three years.

How long does it take for a trademark to expire in China?

This process can take between 6 and 10 months. It all depends on the progress of the case and any evidence submitted by the party defending the mark.

Is the cancellation decision final?

Yes, if the party who has lost the right to the mark within the statutory period does not successfully appeal to the Court.

I have received information that someone has requested that my trademark be cancelled. What does this mean? Has the registration just been cancelled?

No, even if a cancellation request has been filed against your mark, it does not mean that it has been stripped of protection. You have the right to defend yourself. You must prove to the CNIPA that you are using the mark. If you are successful, you have defended your trademark. Preparing a response to an application for cancellation can only be done by a local representative, such as those working with Trademark Partners. Let us know, we know how to help.

Does the request for cancellation apply to all classes in which the mark is protected?

A deletion request only affects one class. This means that the whole procedure for responding to the application must also apply to one class. If you wish to cancel a mark in more than one class, you must file as many requests in as many classes as the mark would be cancelled in.

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FAQ - Frequently asked questions

1. What is a trademark cancellation? 

This is a legal procedure that allows the cancellation of the protection of a trademark that has not been used for a certain period of time.

2. Can a mark registration be cancelled in China if it is not used? 

Yes, you can. All you have to do is to file an application for cancellation on the grounds of non-use for three years. It is then up to the opponent, the owner of the mark, to prove that the mark has been used. If he fails to do so, his registration will be cancelled.

3. Does filing a cancellation request guarantee that the mark will become invalid? 

No. If the owner of the mark proves that he has used it in given period in mainland China, the mark registration will be maintained.

4. Since when has the mark been extinguished been effective? 

The trademark cancellation takes effect from the moment the cancellation is announced and has not been successfully appealed.

5. What is the difference between invalidation and a cancellation of a trade mark? 

Invalidation and cancellation of a trademark are two different procedures. Invalidation of a mark is the withdrawal of protection for a mark that should not have been granted, which must be proven in the application for invalidation. Cancellation of a trademark is the termination of protection due to non-use of the trademark for a certain period of time (in China, it is a period of three years).

6. What is the required period of non-use in China for a trademark to be cancelled? 

According to Chinese law, only a trademark that has not been used for a minimum of three years can be extinguished.

7. Who can request the cancellation of a protected trademark in China? 

An application can be submitted by any interested party, such as another company whose mark will be in conflict, a competitor or a distributor.

8. In China, do I need to justify an interest in cancellation a trademark? 

No. Under Chinese law, anyone can apply for trademark cancellation, even a person who has no interest in the mark. No reasons are given for the application.

9. What happens after a request for cancellation for non-use has been filed?  

The owner of a trademark that has been requested to be cancelled is given a period of time by the Chinese Trademark Office (CNIPA) to provide evidence of use of the mark. If he or she fails to provide credible evidence, the trademark cancellation rights will be terminated.

10. What period should the evidence of use of the mark in China cover?  

The use evidence must relate to a period of three years back from the date of receipt of the application for trademark cancellation.

11. How can I prove the use of the mark and avoid having it cancelled in China? 

Evidence of the use of the trademark in mainland China must be on file. This may include trade fair documentation, full commercial documentation, marketing documentation, commercial contracts, correspondence with business partners in mainland China.

12. Does the submission of use evidence guarantee the maintenance of the mark registration in China?  

No, but if the evidence relates to China and is credible you can expect a favourable verdict. If they are weak ub do not relate to mainland China, the office may consider them insufficient. The China Trademark Office independently evaluates evidence, hence the quality of use evidence is crucial.

13. Can a decision to cancel a mark in China be appealed? 

Yes, either party can appeal. You will need the assistance of a professional representative, such as one of cooperating with Trademark Partners. Let us know, we know how to help you.

14. What happens to an cancelled trademark? 

The mark is no longer protected and becomes available for registration by others after some time.

15. Can I re-register cancelled trademark? 

Yes, as long as the mark meets the conditions for re-registration.

16. Can I apply for cancellation of competitor's trademark? 

Yes. You need to apply to the China Trademark Office (CNIPA), at you can only do this through a local representative, such as those working with Trademark Partners. Let us know, we know how to help.

17. Can I defend my mark from being cancelled in China? 

Yes, the owner has the right to defend the trademark cancellation. You must prepare convincing office evidence of the use of the mark. This could be documentation from trade fairs, full business records, marketing documentation, business contracts, correspondence with business partners from Mainland China.

18. Is the mark's cancellation is published n China? 

Yes, information on cancellation is published.

20. Can I recover an cancelled trademark? 

The only way is to re-register the mark, if of course it passes the entire procedure ending with the issuance of a certificate of protection for the mark.

21. Can I cancel a mark belonging to a competitor? 

Yes. This, although brutal, is what is sometimes encountered.

22. Is the cancellation of unused trademark definitive? 

Yes, unless it is successfully appealed. At the same time, this does not mean that a mark will never be protected. After all, it can be successfully re-registered.

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