Non-Use Cancellation in China: Filing, Answering and the Evidence That Counts

Introduction: the procedure is where cases are lost

A non-use cancellation is the most common contested proceeding a Chinese registration faces. Most published guidance explains when a mark can be cancelled and what evidence of use looks like. Far less is written about the mechanics of actually filing and answering a cancellation through the online system, and the mechanics are where foreign owners and their advisers most often come unstuck.

This article walks through the procedural questions that arise in practice.

Filing the cancellation online

A cancellation may be filed through the trademark online service system. The filing party completes the request, identifies the registration and the goods or services against which the cancellation is directed, and sets out the basis.

Two practical points apply from the outset. First, a cancellation can be directed at only part of the goods or services of a registration, and the choice of scope matters: it determines what the registrant has to defend. Second, the cancellation operates in relation to a defined three-year period, and the request should state the period it relies on. A request that is vague about the period invites a procedural objection and wastes time.

How the registrant receives the notice

Where a cancellation is filed electronically, the office sends the registrant a paper notice to provide evidence of use of the registered trademark. At the same time, an electronic copy of the notice to answer is sent to the trademark agency most recently recorded for the registrant's business.

This dual channel is deliberate and it has a consequence. The registrant's clock runs from service of the notice, not from whenever the paper copy is physically collected. Where electronic service applies, the document is deemed served fifteen days after dispatch.

For a foreign registrant, the agency of record is therefore the operative address. If it is stale, the case proceeds without anyone acting.

Downloading the other side's materials

The defending party is entitled to see what it has to answer. Two routes:

The registrant can use the download code contained in the annex to the paper notice to obtain the applicant's electronic filing materials through the download facility on the CNIPA trademark site.
Users of the trademark online service system can download the same materials through the answer management section of the system.

The download code is the critical artefact. It arrives only with the paper notice, so a registrant whose post is unreliable should be prepared to obtain it through its agency of record rather than waiting.

Answering: the electronic route

The defending party may answer either electronically or on paper. Where it answers electronically, it enters the answer management section of the trademark online service system, uses the answer binding channel to enter the download or binding code, and then files the answer online.

One rule catches people out. Where the download or binding code is used and the answer is completed electronically, a paper answer can no longer be filed. The choice is effectively made on first filing, and it should be a deliberate one rather than a decision taken by whoever acts first.

Answering: what a paper answer involves

Where the registrant elects paper, the answer and its evidence are filed on paper. The practical difficulty is volume. Evidence of use for a three-year period is often substantial, and paper filing imposes real logistical cost on a foreign registrant, whose materials typically originate outside China and must be assembled, translated and shipped.

The evidence you must file

The materials used to show that the mark was not continuously unused for three years must meet defined requirements. In outline:

The evidence must display the mark at issue.
It must show use on or in connection with the goods or services for which the mark is registered.
It must be dated within the relevant period.
It must be capable of showing that the use occurred in China and in the course of trade.

Note the fourth requirement, which is the one foreign registrants most often fail. Material generated outside China, or material that is genuinely unilateral — a contract, a statement, an unverifiable photograph — does not satisfy it.

Time, and the supplementary-evidence trap

The registrant has two months from receipt of the notice to answer. Where further evidence is needed, the intention to supplement must be declared in the answer, and the supplementary evidence must then be filed within three months of submitting the answer.

The two clocks run consecutively, not concurrently, which is why a registrant that declares an intention to supplement and then moves slowly can find itself outside the second window with the answer already filed.

Practical order of operations

The sequence that works:

Confirm which agency is on the record, and that it is responsive, the moment a case appears.
Obtain the paper notice and the download code, and download the applicant's materials.
Compute the answer deadline from the service date, not from the date the case came to attention.
Decide the reply channel deliberately, understanding that an electronic answer forecloses a paper one.
Assemble evidence by reference to the three-year window, structured by goods or services.
If supplementation is needed, declare it in the answer and diary the three-month deadline immediately.

What the applicant's filing looks like

It helps the registrant to know what it is answering. Under the electronic filing arrangements, the applicant's request is prepared online, and the space for the legal and factual basis is subject to a character limit — 2,000 characters, counting every character including non-displaying ones. That is a tighter budget than it sounds, and it explains why applicant submissions are often terse.

A related point on evidence. Where a single piece of evidence supports more than one legal ground, it may be cross-referenced under different grounds rather than duplicated; the conventional approach is to note in the relevant passage that the evidence also bears on another ground. This affects how the registrant should read the applicant's submission — cross-referencing is normal and is not a defect.

What the registrant should assume about the file

Three assumptions are safe and useful.

The applicant's materials will be available to the registrant, either through the download code in the paper notice or through the answer management section of the online system where the registrant is a system user. There is no need to reconstruct the case from the notice alone.

The evidence standard the registrant must meet is defined by the question the office is asking, not by how much material can be produced. Volume is not the test; relevance to the registered goods or services, within the period, in China, in the course of trade, is the test.

And the deadline is calculated under the service rules rather than by reference to when anyone actually read the document. That last assumption is the one that most often proves decisive, and it is the reason the registration file should record the office's dispatch date alongside every document.

Where electronic and paper answers diverge downstream

The choice of channel does not only affect how the answer is filed. It determines how everything after it arrives. Where the registrant has chosen electronic replies, documents other than the notice to answer itself come electronically. Where paper replies have been chosen, the registrant continues to receive paper.

For a foreign registrant this has a practical implication that is easy to overlook. Choosing electronic replies concentrates everything into the online system, which is convenient if the registrant's Chinese agency is genuinely monitoring that system and a liability if it is not. Choosing paper keeps a physical channel open, at the cost of speed.

Either way, the decision should be recorded, so that a later member of the team knows which channel to expect documents on.

Frequently asked questions

Can a Chinese non-use cancellation be filed online?

Yes. Cancellation is supported by the trademark online service system, and the request identifies the registration, the goods or services in scope and the period relied on.

How does the registrant receive notice of a cancellation?

The office sends a paper notice to provide evidence of use, and at the same time sends an electronic copy to the trademark agency most recently recorded for the registrant's business.

How do I see the applicant's materials?

Use the download code in the annex to the paper notice, or the answer management section of the trademark online service system where you are a system user.

Can I file a paper answer instead of an electronic one?

Yes, but the choice is effectively fixed at first filing. Once the download or binding code is used and the answer is completed electronically, a paper answer can no longer be filed.

How long does the registrant have to answer?

Two months from receipt of the notice to provide evidence of use.

What if I need more time to gather evidence?

The windows themselves are not extended. Instead, declare in the answer that supplementary evidence will be filed, then file it within three months of submitting the answer. The second clock starts when the answer is filed.

What must the evidence show?

The mark at issue; use on or in connection with the registered goods or services; dates within the relevant period; and use in China in the course of trade. Material that is foreign, unilateral or undated will not carry the case.