It used to be rare for one of our clients to be unable to secure a desired trademark in China because someone had beaten them to it. With the proliferation of trademark filings in China over the last 3-5 years, those halcyon days are over.
When our pre-application screening turns up a conflict with a previously registered trademark, we often suggest that our client determine whether the preexisting trademark has been abandoned. Under Chinese trademark law, failing to use a China trademark in commerce at least once every three years puts the trademark at risk of cancellation. I use the words “at risk” because in China a trademark is presumptively valid throughout its term unless someone files a non-use cancellation against it (or otherwise challenges its validity). Of late, our China lawyers have been fielding a lot of inquiries regarding non-use cancellations.
Before we file a non-use cancellation, we gather up our own evidence regarding non-use, usually using Baidu for the initial search. If something shows up on Baidu indicating that the trademark has in fact been used recently, our work is done and securing a non-use cancellation will likely not be possible. If we do not find anything on Baidu, we generally expand our search until we either find evidence of trademark usage or become convinced that filing a non-use cancellation is the way to go.
Filing a non-use cancellation in China is fast and easy, but as with everything involving the Chinese Trademark Office these days, the rest of the process is often delayed. The good news is that with most of our non-use cancellations, the trademark owner never responds and, once the CTMO processes the filing, the “offending” trademark is cancelled, clearing the way for our client’s application.