To what level must the trade mark have been used in China to defeat a non-use cancellation?


(Author: Dr. Jian Xu, the China IP Blogger)

Many overseas applicants are at a loss when facing a non-use cancellation action in China for their trade marks. The question that will always be asked is: to what level must the trade mark have been used in China to defend such an action? My experience is that “diversity” and “coherence” of evidence in reasonable amounts are the keys to sufficient level of trade mark use in China.

Some might think it can be “token use”, meaning that one or two pieces of evidence of use would be sufficient to constitute use in China. The other might worry it will be “substantial use”, requiring lots of evidence in thick volumes to prove use in China.

My experience is that it lies in the middle. The level of use required will certainly be more than token use, but it doesn’t have to reach substantial use either.

More importantly, in practice, to present use of trade mark for the purpose defending non-use allegations, our experience is that diversity and coherence of evidence is more important than sheer quantity.

Diversity means client is better to have sales evidence through e.g. three retailer in relatively small quantities, than to have a big order from only one retailer. Further, it is better to have evidence of sales and marketing rather than just sales or marketing alone.

Coherence means evidence is better to form a coherent chain. For example, the evidence of sales should include sales contracts, product orders, relevant invoices, shipping documents, product brochures so as to give a whole picture of such use.