The Three-Year Non-Use Rule

Under Article 49 of China's Trademark Law, any registered trademark that has not been used for three consecutive years without justifiable reasons may be cancelled upon application by any party. This is known as the 'three-year non-use cancellation' procedure.

This rule serves as a crucial cleanup mechanism — preventing trademark hoarding and keeping the register available for genuine commercial use. It's also a powerful defensive tool: if a prior registered mark is blocking your application, you can attempt to cancel it for non-use.

What Counts as 'Use'?

Under the Trademark Examination Guidelines, 'use' includes:

• Using the mark on goods, product packaging, or containers
• Using the mark in transaction documents (contracts, invoices, price lists)
• Using the mark in advertising, exhibitions, and other commercial activities
• Using the mark on a website, social media, or e-commerce platform
• Authorizing others to use the mark through a recorded license

Important: The mark must be used as registered (or with non-distinctive variations). Use of a substantially different version may not count. Use must occur in mainland China — use in Hong Kong, Macau, or Taiwan does not satisfy the requirement.

Acceptable Forms of Evidence

Strong Evidence

• Sales contracts and invoices showing the trademark on the goods
• Product packaging and labels bearing the mark
• Photos of products displayed in Chinese retail stores
• Chinese-language advertising materials (print, TV, online)
• E-commerce listings on Chinese platforms (Tmall, JD.com, Taobao)
• Notarized screenshots of the branded Chinese website

Weak Evidence

• Internal documents not publicly available
• Use exclusively outside China
• Token or sham use (single customs declaration, minimal sales)
• Unsubstantiated claims without documentary proof

Defending Against a Non-Use Cancellation

If a third party initiates a cancellation action against your mark:

1. 30-day deadline: You have 30 days from notification to submit evidence of use
2. One instance of genuine use is enough: A single genuine commercial transaction within the three-year window can defeat the cancellation
3. Period matters: You must prove use within the three years immediately preceding the cancellation filing date
4. Quantity doesn't matter as much as genuineness: A small volume of real sales beats large volumes of sham transactions

Best Practices

Document your trademark use from day one. Keep a 'use file' for each registered mark containing dated invoices, advertising samples, and product photos. This habit costs nothing but can save your registration if challenged.