In recent years, as people’s trademark awareness continues to increase and trademark wars continue to heat up, cases of cancellation of registered trademarks that have been suspended for three consecutive years have shown a rapid growth trend. So, what is a cancellation case for stopping use of a registered trademark for three consecutive years? How to start the procedure? How should trademark registrants deal with this kind of case? This article will introduce it from the following aspects:

1. Legal provisions

Article 44 of the "Trademark Law" , if a registered trademark ceases to be used for three consecutive years, the Trademark Office will revoke its registered trademark. Article 39 of the "Regulations for the Implementation of the Trademark Law" stipulates: "Any person who commits the act of Article 44 (4) of the Trademark Law may apply to the Trademark Office to cancel the registered trademark and explain the relevant circumstances. The Trademark Office shall Notify the trademark registrant that he or she shall submit evidence of use of the trademark before filing the cancellation application or explain the legitimate reasons for non-use within 2 months from the date of receipt of the notice; evidence of use will not be provided upon expiration of the period or the evidence will be invalid. If there is no justifiable reason, the Trademark Office will revoke its registered trademark. ”

The purpose of this regulation is to integrate trademark resources and clear out the ranks of abandoned trademarks that are no longer in use, so as to make new ones available. The registration and use of trademarks paves the way and urges trademark registrants to use their registered trademarks in a timely and reasonable manner to prevent the waste of trademark resources.

II. Legal Procedure

Cancellation There are two ways for an applicant to apply to the Trademark Office of the State Administration for Industry and Commerce to cancel a registered trademark that has stopped using it for three consecutive years, namely, directly submit a " Cancel the "Application for Suspension of Use of a Registered Trademark for Three Consecutive Three Years" and other relevant materials, or entrust a state-recognized intermediary organization with trademark agency qualifications to apply as an agent. Foreigners or foreign enterprises that do not have a regular residence or business office in China must entrust a trademark agency to represent them. After receiving the cancellation application documents, the Trademark Office will first conduct a formal examination. If the application procedures are not complete or the application documents are not filled in in accordance with the regulations, the Trademark Office will not accept the application and issue a "Notice of Non-Acceptance" to the applicant; if the application procedures are basically complete or the application documents basically comply with the regulations, but need to be supplemented or corrected, the Trademark Office will The applicant issues a "Notice of Cancellation of Application and Supplements and Corrections", requiring corrections within a time limit. If no corrections are made within the time limit, the application will be deemed to have been abandoned, and the Trademark Office will notify the applicant in writing; if the application procedures are complete and the application documents are filled in in compliance with the regulations, the Trademark Office will accept the application. Issue a "Notice of Acceptance of Cancellation Application" to the applicant and a "Notice on Providing Evidence of Use of the Registered Trademark" to the registrant of the applied trademark, requiring them to submit within two months the use of the registered trademark within the required three-year period. Evidence of the trademark or justification for non-use. If evidence of use is not provided upon expiration of the period or if the evidence is invalid without justifiable reasons, the Trademark Office will revoke the registered trademark.

If the registrant submits defense materials and use evidence materials within the prescribed time limit, the Trademark Office will review the evidence materials in accordance with the law. If the evidence is sufficient to prove the use of the trademark within the three years, the Trademark Office will make a decision to maintain the trademark's validity; if the evidence is insufficient, the registered trademark will be revoked in accordance with the law.

3. Legal Remedy Procedure

If a registered trademark is revoked by the Trademark Office on the grounds that it has ceased to be used for three consecutive years, and the party concerned is dissatisfied, it may be revoked within fifteen days from the date of receipt of the cancellation notice. Apply to the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce for review.

4. Evidence of use of a registered trademark

It can be seen from the legal provisions that the key to determining the fate of a registered trademark in cases of cancellation of suspension of use for three consecutive years is evidence of use. Adequate or not.

(1) What is the use of a registered trademark?

Article 3 of the "Regulations for the Implementation of the Trademark Law" stipulates: "The use of a trademark as referred to in the Trademark Law and these Regulations includes the use of a trademark Use the trademark on commodities, commodity packaging or containers, and commodity transaction documents, or use the trademark in advertising, exhibitions, and other commercial activities.

"Essentially, the use of a trademark should be a use with commercial significance. Therefore, a company's simple announcement of trademark registration information or a trademark registrant's declaration of rights to its registered trademark should not be regarded as use in the sense of trademark law. It can only be used in the sense of trademark law. Only evidence of use produced in actual transactions of goods and services has probative force.

(2) What conditions must be met for sufficient and effective evidence of trademark use?

Evidence of use of trademarks. First, the following requirements must be met: First, the evidence materials must have the logo of the applied trademark. Otherwise, the use of the applied trademark cannot be proved. Second, the evidence materials must be able to show the usual users of the applied trademark. Under this circumstance, the user of the trademark should be the registrant of the applied trademark. The licensee’s use of the trademark is also deemed to be use by the trademark registrant, but it should clearly reflect the licensing relationship between the trademark registrant and the licensee. Third, the evidence must reflect the use of the trademark on the goods for which it is approved for use. Fourth, the evidence must be produced within the required three consecutive years, that is, from the date of application for cancellation. Calculate three years. For example, if the cancellation application date is March 24, 2004, the three-year period refers to March 24, 2001 to March 23, 2004. This requires that the applied trademark must be approved. A valid registered trademark that has been registered for three years. Fifth, the evidence materials must be originals or notarized copies. Otherwise, if the evidence materials are in foreign languages, the main parts need to be translated into Chinese.

(3) What materials can be used as evidence of trademark use? How should trademark registrants retain evidence of trademark use in daily business activities?

The following materials are relatively common evidence of trademark use:

1. Invoice: As the basic commercial voucher in economic transactions, the invoice is a written certificate that records business activities. It is issued and collected when purchasing and selling goods, providing or receiving services, and engaging in other business activities. Proof of receipt and payment. Therefore, a true and valid invoice for goods sales or service provision can strongly prove the use of a registered trademark. However, many companies only fill in the name of the goods or services when issuing invoices, but not the trademark name or abbreviation. For example, a five-character registered trademark only contains three characters. Such an invoice has no connection with the registered trademark and cannot prove the use of the trademark. Therefore, it cannot be used as sufficient and effective evidence of use. Therefore, the trademark registrant should standardize the issuance of invoices. and storage, carefully fill in the name of the trademark while filling in the name of the goods and services, and leave strong evidence for the use of the trademark. In addition, compared with invoices issued manually, invoices and special value-added tax invoices printed by tax control devices, Because its management and use are more strict and standardized, it is more probative.

2. Contract (or agreement): Contracts and agreements are important evidence and basis for economic entities to participate in economic activities, so they can be used as trademarks. Valid evidence of use. However, many contract (or agreement) terms seem strict, but the trademark logo is not obvious. In particular, some service agreements are not marked with trademarks at all and cannot be used as evidence of valid use. Therefore, when signing a contract or agreement, the trademark must be clearly marked. It is best to write the name and registration number of the registered trademark to leave effective evidence of the use of the trademark.

3. Advertising items: Advertising includes advertisements for goods and services published in various media such as radio, television, newspapers, magazines, etc. Advertising is an important way for enterprises to promote their trademarks, goods and services. Trademark logos are often placed in prominent positions in advertisements and are a good evidence material. However, some advertising methods, such as TV advertisements, outdoor advertising, etc., cannot provide information on the time of advertisement release, so it is difficult to use it as direct evidence to prove the use of the trademark. Advertisements in newspapers, magazines, various conferences, expositions, trade fairs, etc. are more direct and powerful evidence because they can provide important information such as time and trademark logos.

4. Packaging: Packaging includes product packaging, service supplies packaging or containers, etc. Since it is difficult to determine the specific time of printing and use of a simple package or container, it is difficult to use it as direct evidence, so other evidence is needed to support it.

5. Product inspection report: A product inspection report issued by the superior quality supervision department, industry association and other authoritative organizations to prove the quality of the product. The procedures are strict and the contents of the report are clearly marked. It is a good evidence of trademark use.

6. Trademark printing certification materials: Trademark printing is a prerequisite for trademark use, so trademark printing certification materials are also strong evidence to prove trademark use. However, in actual cases, many companies directly provide some physical trademarks and logos, but fail to provide certification materials for printing these trademarks and logos. Since the specific time of printing and use of these trademark logos cannot be confirmed, they cannot be accepted as valid evidence. Therefore, when printing trademarks, enterprises must choose printing companies with good reputation and whose business scope includes "trademark and logo printing". Such printing companies have a complete management system for trademark printing. They have complete registration and custody records of printing time, trademark name, and printing client. They are also relatively standardized in issuing invoices and entering into contracts, and can provide services for trademarks. Use to provide strong evidence.

Other materials that can be used as evidence of trademark use include product instructions, inspection and quarantine certificates for goods entering and exiting LI, product customs declaration forms, etc. However, none of the above-mentioned single materials may be able to fully prove the use of a trademark. Therefore, multiple evidence materials are often required to corroborate and correlate with each other to form an effective evidence chain to fully prove the use of a trademark. Therefore, the trademark registrant should provide as many evidence materials as possible when making a defense to ensure that the evidence is sufficient and effective.

5. Strictly abide by the relevant provisions of the Trademark Law and the Implementation Regulations of the Trademark Law. Regulating the registration and use of trademarks

Standardizing the registration and use of trademarks The Trademark Law and the Implementing Regulations of the Trademark Law are the most basic and important legal provisions in my country's trademark legal system. They are also the rules for trademark registration and use in my country. Therefore, all trademark registrants should conscientiously study and strictly abide by the relevant provisions of the Trademark Law and the Implementation Regulations of the Trademark Law, and use registered trademarks reasonably and lawfully. So, in daily business activities, in addition to paying attention to retaining evidence of trademark use, what other aspects deserve special attention?

(1) Check the trademark registration application.

Our country is a member of the Nice Agreement, and our country’s trademark applications and registrations are carried out in accordance with the International Classification of Goods and Services for Trademark Registration. However, many applicants are not very clear about the differences between goods or services belonging to different categories and similar groups. For example, commodity jelly and jelly (candy) belong to categories 29 and 30 respectively, and commodities metal building materials and non-standard products belong to categories 29 and 30 respectively. Metal building materials belong to categories 6 and 19 respectively. When applying for trademark registration, trademark applicants must carefully study the classification of goods and services, and submit registration applications based on their own business scope and development prospects to prevent registration in the wrong category. Otherwise, the goods and services for which the registered trademark has been approved for use after waiting for more than a year or even longer are not the goods produced or the services provided by oneself. Once such a trademark is subject to the cancellation procedure of stopping use for three consecutive years, it is very likely that it will If it is revoked, the trademark registrant's years of painstaking efforts will be in vain.

(2) To license others to use a registered trademark, a license agreement must be signed and filed with the Trademark Office.

Many trademark registrants do not sign a trademark license agreement when licensing others to use their registered trademarks, nor do they report it to the Trademark Office for filing, especially between parent companies and subsidiaries, and between group companies and branches. , often think that the family is easy to talk to and does not strictly follow legal procedures. In this way, once a trademark is filed for cancellation of suspension of use for three consecutive years, since the trademark user is inconsistent with the trademark registrant, the trademark registrant cannot prove his use of the registered trademark, which will cause the registered trademark in use to be revoked, causing harm to himself. Huge loss.

(3) Handle the name change, address change and transfer procedures of registered trademarks in a timely manner.

With the acceleration of my country's economic marketization and globalization, the market competition environment faced by enterprises is changing rapidly. Enterprise names and addresses change from time to time, and trademark rights are also transferred frequently.

In essence, the use of a trademark should be a use that has commercial significance. The mere publication of trademark registration information, or the declaration of rights made by a trademark registrant to its registered trademark, shall not be regarded as the use of a trademark within the meaning of trademark law.

The above-mentioned review of the time of suspension of use for three consecutive years is calculated forward three years from the date when the Trademark Office receives the application document for cancellation of a registered trademark that has not been used for three consecutive years. If a trademark registrant starts to use his registered trademark after someone files an application for cancellation on the grounds of "not using it for three consecutive years", his use will be invalid.

After the Trademark Office receives the applicant’s cancellation application, the Trademark Office will notify the trademark registrant and provide the trademark within two months from the date of receipt of the notice within the above three-year period. evidence of use or justification for non-use. If evidence of use is not provided within the time limit or the evidence is invalid, the Trademark Office will revoke the registered trademark.

If the party concerned is dissatisfied with the Trademark Office’s cancellation decision, the party concerned may submit a review to the Trademark Review and Adjudication Board within 15 days from the date of receipt of the decision notice. If the Trademark Review and Adjudication Board decides to uphold the Trademark Office's decision to revoke the decision, the party concerned may file a lawsuit with the Beijing No. 1 Intermediate People's Court within 30 days from the date of receipt of the decision.

Documents and materials required to revoke a trademark that has not been used for three consecutive years:

1. "Trademark Agency Power of Attorney": If a trademark agency is entrusted to act as an agent, the applicant must provide a stamped stamped power of attorney. Applicants outside the mainland who want to apply for cancellation of a registered trademark for three consecutive years in China must entrust a trademark agency;

2. "Application for Cancellation of a Registered Trademark for Three Consecutive Years": Entrustment If an agency applies for registration, it shall be produced by the agency;

3. A copy of the "Trademark Announcement" for the canceled registered trademark; and an explanation of the use of the canceled trademark.

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