Non-Use Cancellations in China: Updated Evidential Requirements
The China National Intellectual Property Administration (CNIPA) has recently introduced updated requirements for filing non-use cancellations against trade mark registrations in China, placing a slightly greater evidential burden on non-use cancellation applicants.
Background
Brand owners entering or expanding their trade mark portfolios in China are well aware of the challenges in securing trade mark registrations, particularly due to obstacles posed by identical or similar existing prior registrations in what is now an extremely crowded trade mark register.
Non-use cancellations have traditionally been viewed as an attractive option for brand owners to clear the path for registration due to two key factors: (i) the relatively lower costs involved in preparing preliminary evidence of non-use of the conflicting prior registrations compared to the substantive submissions required for oppositions and invalidations, and (ii) the CNIPA’s historical reluctance to accept letters of consent or coexistence agreements.
However, the ease of filing non-use cancellations has attracted malicious third parties who exploit the system by targeting legitimate trade mark registrations. This has not only placed a significant burden on brand owners to defend against unwarranted challenges but has also increased the CNIPA’s workload.
CNIPA’s Updated Requirements for Non-Use Cancellations
Beginning in early 2025, the CNIPA issued Office Actions for non-use cancellations, outlining adjustments in the evidential standards required for filing:
- Basic information of the registrant of the targeted registration (Registrant): Non-use cancellation applicants (Applicants) must provide basic information of the Registrant, including its business or operational scope, operational status, trade mark registration status, and etc.
- Investigation report and evidence of the Registrant’s business: If the Registrant is in operation or existence, Applicants are required to submit an investigation report and evidence of the Registrant’s product sales or service provision, business premises, or office premises.
- Evidence of non-use from online platforms or industry-specific websites: Applicants must present search results and evidence of the target registration on comprehensive online platforms or industry-specific websites for the registered goods or services. The relevant search results and evidence should include continuous full-page screenshots of the first five pages from a minimum of three different platforms.
Insights and Practical Guidance for Brand Owners
The above requirements have likely been introduced to balance the burden of proof in non-use cancellation proceedings, aiming to reduce the number of frivolous and malicious filings while preserving an effective mechanism for brand owners to secure registrations for their brands. These latest requirements align with Article 66 of the Regulations for the Implementation of the Trademark Law of the People’s Republic of China, which stipulates that Applicants should present “relevant facts of the circumstances” when filing non-use cancellations.
The CNIPA has yet to issue official notices or guidance on the above updated requirements, and it remains unclear whether these requirements will apply to non-use cancellation applications universally. It is likely that the CNIPA will adjust or provide further guidance on these requirements. For the time being, here are some practical tips and comments for navigating the current requirements:
- Basic information of the Registrant: For corporate Registrants, information from the National Enterprise Credit Information Publicity System could be provided (B. similar information may not be available for Registrants who are individuals).
- Investigation report and evidence of the Registrant’s business and premises: The CNIPA has indicated that further clarification for this requirement may be provided. For now, it is recommended to submit evidence available online, including but not limited to results of the Registrant’s address from Baidu Map.
- Evidence of non-use from online platforms or industry-specific websites: Relevant online platforms include Baidu, Xiaohongshu (Rednote), Douyin (Chinese equivalent of TikTok). For industry specific websites, Taobao, JD.com, Dazhong Dianping, or Meituan may be used where applicable.
“While the effectiveness of these new evidentiary requirements in deterring frivolous non-use cancellations remains to be fully evaluated, it is encouraging to see the CNIPA taking necessary steps to promote a healthier trade mark ecosystem.”
From the perspective of brand owners, while initiating non-use cancellation proceedings in China is now somewhat more complex than in jurisdictions like South Korea and Japan, where evidence of non-use is not required, the adjusted evidentiary standard remains lower than that in jurisdictions like Hong Kong and the United States. Consequently, costs for managing non-use cancellations in China are unlikely to rise significantly. Brand owners should not be discouraged in their efforts to enter the China market. Rather, this development ought to be interpreted positively, as a potential solution to mitigate brand owners’ burden of defending their trade mark registrations from malicious or frivolous non-use cancellation filings.
