Non-use cancellation has been an effective and popular way to remove registrations in China. It is often used by trademark applicants to remove prior similar marks identified in office actions. This procedure is also important in the rightful owner’s enforcement strategy to remove copycat registrations by third parties. On the other hand, there are malicious parties that file non-use cancellations against many marks of big companies at the same time, possibly seeking compensation in return for withdrawal of the actions. The malicious non-use cancellation often puts the registrants in a difficult situation if they have not properly docketed their use evidence. This article provides an update of the application requirements for this procedure.
Under the Trademark Law in China, any party may apply to the Trademark Office to cancel a registered trademark if the trademark has not been used for three consecutive years without justifiable reasons. In practice, for quite a long time, the cancellation petitioner only needs to submit several pages of search results from the local search engine Baidu, alongside with the necessary formality documents.
From March 2025, the China National Intellectual Property Administration (“CNIPA”) has issued Notices of Correction against some non-use cancellation actions, requesting the petitioner to provide further details to support the action. If the petitioner does not file a response to the CNIPA’s satisfaction, the non-use cancellation action would not be accepted.
On 25 May 2025, the CNIPA issued an updated application guideline for non-use cancellation applications (the “Guidelines”). However, since then, we observe that there are still changes in the requirements in actual practice.
The change is believed to be measures adopted by the CNIPA to curb the large number of improper non-use cancellation actions, which include:-
• malicious actions filed against marks that are obviously in use;
• repeated non-use cancellations filed against the same mark which increases the burden of the registrant to maintain its marks;
• large number of non-use cancellations filed by one petitioner against marks of many registrants in many classes, which is clearly beyond reasonable measures to clear idle trademarks, and is suspected of exploiting the non-use cancellation procedure for profit.
The latest requirements and practice are as follows:-
Increased evidential requirements
In the Guideline published on 25 May 2025, the CNIPA now requires the following information and evidence, including:
• basic information about the registrant, including the status and scope of the registrant’s business and trademarks held by the registrant;
• market search results relating to the subject mark, including but not limited to internet search results, websites or platforms in the specific field, market survey, investigation results on the registrant’s official website, Wechat public account, e-commerce platform, information on the physical stores or manufacture facilities, etc.
In our experience, internet search results in 3 or more major search engines, e-commerce platforms or specialised platforms with keywords including the registrant’s name, the mark and the designated goods are usually sufficient.
If the CNIPA considers that the evidence submitted is insufficient, it may issue a Notice of Correction requesting for further evidence to show non-use.
Prohibition of filing non-use cancellation on behalf of others?
Given that the Trademark Law allows any party to file non-use cancellation, it has been a common tactic for rightful owners to arrange for an unrelated company to file non-use cancellation. This is especially popular among famous brands which wish to conceal their identity and prevent retaliation.
In around March to mid-May 2025, the CNIPA has requested the cancellation petitioner to provide an undertaking stating that no material facts regarding the real applicant or other critical information have been concealed from the CNIPA. The CNIPA has also required the petitioner to provide information on any pending application being blocked by the registration he is seeking to cancel.
However, we particularly note that in the Guideline issued in May 2025, an undertaking is not stated as an application requirement. Also, since end of May 2025, we have not received requests by the CNIPA to provide such an undertaking. It does appear that as of now, any entity can file a non-use cancellation without confirming its interest in the action.
Multiple non-use cancellation actions filed against the same mark
In our experience, if the petitioner wishes to clear a registration that is already pending a non-use cancellation filed by another party, it is common for the petitioner to still file a fresh non-use cancellation, instead of waiting for the decision of the non-use cancellation already filed. This is because filing one’s own action would allow the petitioner to have control over whether to further file a review or appeal, and to review and challenge the evidence submitted by the registrant at a later stage.
In cases where there are more than one non-use cancellation filed against a trademark, the CNIPA has issued Notice of Correction requesting the petitioner of the later action to withdraw the non-use cancellation action, or to suspend the examination of the non-use cancellation until the earlier non-use cancellation is resolved. While this may lengthen the procedure, it smoothens the procedures and lessens the registrants’ burden to repeatedly provide evidence of use.
There is also suggestion that in response to non-use cancellation actions, registrants can refer to the case materials previously submitted in another case, and do not need to file evidence again.
Implications
While the change in practice has increased the burden and possibly costs of the petitioner to show non-use, it may be beneficial to curb non-use cancellation filed in bad faith. In any event, it is advisable for registrants to properly docket their evidence of use to defend possible non-use cancellation actions. Time stamping of official websites and e-commerce sites are cost effective ways to affix evidence with minimal involvement from client’s local team. Please reach out to us and we can tailor-make an evidence collection plan depending on your use in China. We will keep you updated on any further changes on this important procedure in China.
