Trademark

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Non-use trademark cancellation in China: laws, rules and tips
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Alternatives to trademark opposition

The alternative that an opponent can use is the cancellation.
The cancellation or any equivalent procedure should be based on relative grounds, absolute grounds, on non-use, bad faith issues; conflicting copyright or design rights; rights under Art. 6 bis of the Paris Convention or notorious or well-known mark; rights under Art. 6 septies of the Paris Convention; rights of a registered company name (local or foreign); rights under Art. 8 of the Paris Convention or the equivalent thereto; rights under Art. 6 ter of the Paris Convention(Prohibitions concerning State Emblems, Official Hallmarks, and Emblems of Intergovernmental Organizations); offenses against public policy or principles of morality; conflict with prior rights in a personal name or portrait; prohibitions concerning geopraphycal names of the administrative divisions at or above the county level and foreign geographical names that are well known to the public.
A cancellation action (other than non-use) must be filed within five years from the registration date. In case of an well-known mark involved and the bad faith of the registrant is obvious, a cancellation action may not be bound by the five-year limitation. For non-use grounds the deadline is after three years from the registration.
The cancellation authority for non-use grounds is the Chinese Trademark Office and in other cases is the Chinese Trademark Review and Adjudication Board.

Trademark opposition parties

The opponent can be any natural and juridical person with relevant priority rights.
Two or more opponents, a parent company and it trading subsidiary or two otherwise unrelated companies may jointly file a single opposition if they have common interests.
If the opponent based his opposition on a priority he doesn’t has to provide proofs of use to the applicant or to the opposition authority.

Post- Filing

In this jurisdiction, opposition proceedings require alternating action by one party after the other.
If the opponent has withdrawn the opposition, the opposition authority can still reject the opposed application on any of the opposition grounds.

Appeals

An opposition decision can be appealed in 15 days from receipt of the notification of the opposition decision, apply for a review to the Trademark Review and Adjudication Board.
The opponent can be represented by the same agent who filed the opposition but is recommended the representation of a specialist counsel.
Higher appeals can be made to the Trademark Review and Adjudication Board, within 30 days from receipt of the notice of the ruling, institute legal proceedings with the people’s court.

Oppositions in the international trademark registration procedure having China like designated country

The difference regarding the terms between an opposition to a national and an international trademark applications is that the term for an International Registration is of three months starting with the first day of the month after the publication in the WIPO gazette. Another difference is that for International Registration the opposition period is before ending of the examination while for the national application, the opposition period is after the examination process.

The Chinese Trademark Office recently laid down specific examples of evidence of use that a registered trademark proprietor can provide to defend successfully against a cancellation action for three years' non-use of that mark.

For a product mark, the evidence can consist of use of the trademark:
•on the product itself or on its container, packaging, label, additional tag, instruction manual or user handbook;
•on commercial documents relating to the product, including the sales agreement, invoice, receipt, bill, import or export certificate of inspection or quarantine or customs declaration; or
•in advertising or promotional activities relating to the product, such as in radio or television broadcasts, printed publications approved by the Department for Publication Administration of the State Council, advertising billboards, mail advertisements or government-approved exhibitions or expositions.

Evidence to show use of a service mark can include use of the mark on a service manual, sign board, sign or decoration, menu (for restaurant services), price list, registration certificate for provision of the services, coupon, stationery, invoice, agreement for provision of the services, remittance voucher or invoice.

The Trademark Office considers the following reasons for non-use of the mark to be valid:
•force majeure;
•government restrictions;
•liquidation or bankruptcy of the proprietor; or
•other circumstances where the proprietor cannot use the trademark.

 



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