The Chinese New Year is generally seen by those celebrating it as a time for reflection, change and improvement. For the 2025 Chinese New Year, the China National Intellectual Property Administration (“CNIPA”) also seems to have taken the opportunity to modify its practice in relation to the evidential burden in trade mark non-use cancellation cases.

As the New Year holidays ended and trade mark prosecution work resumed, some trade mark agents in China received rectification notices from the CNIPA regarding non-use cancellation cases filed by those agents. Previously, when filing for non-use cancellation against a trade mark that allegedly has not been used for a continuous period of 3 years, the evidential burden falls first on the trade mark owner (to prove there was some use of the trade mark in the past 3 years) rather than on the non-use cancellation petitioner. The rectification notice, however, requested the non-use cancellation petitioner to submit:

1.         Basic information on the trade mark registrant, including its business scope and status of business operation / incorporation.

2.         If the business operation / incorporation status of the trade mark registrant is still active, an investigation report and evidence on the registrant’s sales of goods, provisions of service and/or the registrant’s business premise.

3.         Search results from at least three online platforms regarding usage of the trade mark. Acceptable online platforms include those that provide a wide range of products and those that specialise in the particular goods or services for which the trade mark is registered. At least the first five consecutive pages of the search results should be provided.

The rectification notice from CNIPA is based on Article 66 of the Implementation Regulations of the Trademark Law, which stipulates that a request for non-use cancellation of a trade mark should be filed with an “explanation of the relevant circumstances”.

It remains to be seen whether this change of practice is a general trend for all non-use cancellation cases, or if the CNIPA is just putting this heavier burden on specific cases where the trade mark had been subjected to multiple (and perhaps malicious) non-use cancellation attacks. There were reports that there had even been abusive cases where cancellation petitioners were asking legitimate registrants for “nuisance” (or blackmail) payments to withdraw their cancellation filings.  For the time being, it is recommended that, whenever filing for a non-use cancellation in China, some preliminary supporting evidence demonstrating that the subject mark is not in use should also be submitted.