Case Brief
WEIPR was entrusted to register a trademark. After searching, it was found that the trademark had been registered before. In this case, an application for revocation of the trademark was filed by WEIPR to the State Intellectual Property Office. In the end, WEIPR successfully registered the trademark for the client after the revocation of the trademark.
One may wonder: in what circumstance can a trademark be revoked? According to Article 49 of the Trademark Law of the People's Republic of China, if a registered trademark has not been used for three consecutive years without justifiable reasons, any unit or individual may apply for cancellation of the registered trademark. Based on this, WEIPR applied to the State Intellectual Property Office (SIPO) for cancellation of the registration of the trademark No. 12959236, Class 42, “
” for all the approved services, including “chemical services”. As the original registrant failed to submit to the State Intellectual Property Office (SIPO) within the designated period the evidence of his registered trademark, SIPO invalidated the trademark No. 12959236 and published the decision. Subsequently, WEIPR helped the client to successfully apply for the registration of the trademark “
” in Class 42.
Significance
As the total number of trademark registrations in China is increasing, trademark resources are becoming increasingly scarce, and there are more and more cases in which new trademark registration applications are blocked by prior identical/similar trademarks. Therefore, “trademark revocation” has become an effective means for trademark applicants to overcome the obstacles of prior trademarks and obtain the approval of their own trademark registration.
Legal Ground
Article 49 of the Trademark Law of the People’s Republic of China. If a trademark registering changes the registered trademark, the name, address of the registrant or other registered matters on his own in the process of using a registered trademark, the local industrial and commercial administrative department shall order it to make corrections within a time limit；If the correction is not made after the expiration of the period, the Trademark Office shall revoke the registered trademark. If a registered trademark becomes the common name of the goods approved for use or has not been used for three consecutive years without justifiable reasons, any unit or individual may apply to the Trademark Office to cancel the registered trademark. The Trademark Office shall make decision within nine months from the date of receiving the application. If special circumstances require an extension, it may be extended for three months with the approval of the administrative department for industry and commerce of the State Council.
Article 66 of the Regulations on the Implementation of Trademarks. If a registered trademark as provided for in “Article 49 of the Trademark Law” has not been used for three consecutive years without justifiable reasons, any unit or individual may apply to the Trademark Office to cancel the registered trademark, and the application shall be submitted with explanations of relevant circumstances. After the acceptance, the Trademark Office shall notify the trademark registrant and order him/her to submit evidence of the use of the trademark before the revocation application is filed or explain the legitimate reasons for not using it within 2 months from the date of receiving the notice；If the evidential materials for use are not provided before the expiration of the period or the evidential materials are invalid without justifiable reasons, the Trademark Office shall revoke the registered trademark.
The evidence materials used as mentioned in the preceding paragraph include the evidence materials that the trademark registrant uses the registered trademark and the evidence materials that the trademark registrant authorizes others to use the registered trademark. If an application is filed for cancellation of a registered trademark on the grounds that it has not been used for three consecutive years without justifiable reasons, the application shall be filed after the expiration of three years from the date of announcement of the registered Trademark Registering.
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