The non-use cancellation action — commonly known as “撤三” (sanction three) in Chinese practice — is one of the most effective tools in China’s Opposition & Disputes system. Under Article 49 of the Trademark Law, any person can request cancellation of a trademark that has not been used in China for three consecutive years. This article explains how to use this powerful mechanism.

Legal Basis: Article 49 of the Trademark Law

Article 49 provides that if a registered trademark has not been used for three consecutive years without justifiable reasons, any entity or individual may apply to CNIPA for cancellation. This provision is designed to clear the trademark register of dead marks that block legitimate applications.

When to Use Non-Use Cancellation

Non-use cancellation is an important Opposition & Disputes strategy when:

  • A prior trademark is blocking your application but appears to be unused
  • You want to clear the register of defensive registrations that are not actively used
  • You need to overcome a similarity-based refusal where the cited mark has no evidence of use
  • You are building a defensive strategy against potential infringement claims

CNIPA’s Stricter Evidence Requirements

In recent years, CNIPA has significantly tightened its evidence requirements for proving trademark use. As analyzed by leading law firm JunHe, the key changes include:

  • Higher evidentiary standard: Mere token use is no longer sufficient. The use must be genuine and commercial
  • Specific evidence requirements: Evidence must show the mark as registered, used on the registered goods, in China, during the relevant three-year period
  • Rejection of OEM use: In a significant development, CNIPA has held that original equipment manufacturing (OEM) for export does not constitute trademark use in China

Acceptable Evidence of Use

To survive a non-use cancellation challenge, the trademark owner must provide:

  • Product packaging, labels, or hang tags bearing the mark
  • Sales contracts, invoices, and shipping documents
  • Advertising materials, including print, online, and broadcast media
  • Exhibition participation records
  • Financial records showing commercial transactions

Strategic Use in Opposition & Disputes

Non-use cancellation can be combined with other Opposition & Disputes strategies:

  • File first, negotiate later: Filing a non-use cancellation can pressure the registrant into a coexistence agreement
  • Combine with invalidation: If the mark was registered in bad faith, combine non-use cancellation with an invalidation request
  • Use as a defensive tool: If you receive an infringement claim, check whether the claimant’s mark has been in use

Timeline and Procedure

A non-use cancellation proceeding typically takes 6-12 months. The trademark owner is given a deadline to submit evidence of use. If the owner fails to provide satisfactory evidence, CNIPA cancels the registration. The decision can be appealed to the TRAD.

Conclusion

Non-use cancellation is a powerful tool in China’s Opposition & Disputes system for clearing the trademark register of dead marks. With CNIPA’s stricter evidence requirements, brand owners seeking to remove unused blocking marks have a stronger position than ever. For foreign applicants navigating the Chinese trademark system, non-use cancellation should be a key part of the strategic toolkit.

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Disclaimer: This article is for informational purposes only and does not constitute legal advice.