Trademarks in China: How to Avoid “Non-Use Cancellation”

Appropriate and Inappropriate Evidence of Trademark Use (From China Law Perspective)

The Chinese Trademark Office (CTMO) recently issued the following guidelines. According to the trademark law in PRC, here are some of the key points regarding the instructions on the use of evidence of trademark:

1. The specific manifestations of the use of trademarks on designated commodities are:
   1. Attach the trademark to the goods, commodity packaging, containers, labels, etc. by direct attachment, engraving, branding or weaving, or use it in the product additional label, product manual, introduction manual, price list, etc.;
   2. Trademarks are used in transaction documents linked to the sale of goods, including use in commodity sales contracts, invoices, bills, receipts, import and export inspection and quarantine certificates, customs declaration documents, etc.;
   3. Trademarks are used on media such as radio, television, or in publicly distributed publications, as well as advertisements for trademarks or trademarks using billboards, postal advertisements, or other advertising methods;
   4. Trademarks are used in exhibitions and fairs, including printed materials and other materials provided at exhibitions and fairs;
   5. Other forms of trademark use that comply with the law.
2. The specific manifestations of trademark use on designated services are:
   1. Trademarks are used directly in service places, including introductory manuals for service, signage for service venues, store decoration, staff clothing, posters, menus, price lists, lotteries, office stationery, letterheads, and other items related to designated services.;
   2. Trademarks are used on documents and materials related to services, such as invoices, remittance documents, service agreements, maintenance and repair certificates, etc.;
   3. The use of trademarks in media such as radio or television, or in publicly distributed publications, and advertising by means of billboards, postal advertisements or other advertising methods for trademarks or the use of trademarks;
   4. Trademarks are used in exhibitions and fairs, including printed materials and other materials used in exhibitions and exhibitions;
   5. Other forms of trademark use that comply with the law.
3. The following circumstances shall not be regarded as the use of trademarks in the sense of the Trademark Law:
   1. The publication of the trademark registration information or the statement of the trademark registrant regarding the exclusive right to its registered trademark;
   2. Used outside of an open commercial sector;
   3. Use only as a gift;
   4. Only transfer or license behavior without actual use;
   5. Symbolic use solely for the purpose of maintaining trademark registration.
4. The following evidence is not considered to be trademark use in the sense of the Trademark Law:
   1. A contract for the sale of goods or an agreement or contract for the provision of services;
   2. written testimony;
   3. A situation where it is difficult to identify whether the physical evidence, audio-visual materials, website information, etc. have been modified;
   4. Physical replicas.
5. The following circumstances may perhaps be considered valid reasons why your TM was not to be used for three consecutive years:
   1. Force majeure
   2. Government policy restrictions;
   3. Bankruptcy liquidation;
   4. Others legitimate situations, beyond the control of the trademark
   5. Registrant, that prevent them from using the TM.