1、 Overview of Evidence for Withdrawal of Three Cases

（1） Legal definition of trademark use

1. Used on products

① Used on goods, product packaging, or containers

② Used on commodity trading documents

③ The use is reflected in legal documents and certification documents issued by national agencies, testing institutions, or industry organizations

④ Used in advertising, exhibitions, and other commercial activities

2. Used on services

① Directly used in service locations

② Used for documents and materials related to services

③ The use is reflected in legal documents and certification documents issued by state organs, appraisal institutions, or industry organizations

④ Used in advertising, exhibitions, and other commercial activities

3. Used in advertising, exhibitions, and other commercial activities

① Used in media such as radio, television, and the internet

② Used on publications approved for public distribution by the publishing administrative department of the State Council

③ Used in billboards, mail advertisements, or other advertising methods

④ Used in exhibitions and expos approved by relevant government management departments at all levels

（2） Review of evidence used

Article 26, paragraphs 3 and 4 of the "Provisions of the High People's Court on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization and Confirmation" (Interpretation [2020] No. 19) stipulate that:

No actual use of the registered trademark, only transfer or licensing actions; Or simply publishing trademark registration information and declaring exclusive rights to the registered trademark shall not be recognized as trademark use.

If the trademark owner has a genuine intention to use the trademark and has necessary preparations for actual use, but has not actually used the registered trademark due to other objective reasons, the people's court may determine that they have legitimate reasons.

Article 19 of the "Guidelines for the Trial of Administrative Cases Involving Trademark Authorization and Confirmation" (2019) issued by the Beijing High Court, titled "Application of Article 49 (2) of the Trademark Law" 19.4 [Recognition of Use]:

If a party claims to maintain trademark registration under any of the following circumstances, it shall not be supported:

(1) Using the disputed trademark only on similar goods or services outside the approved scope of use;

(2) Using disputed trademarks but failing to differentiate the source of goods and services;

(3) To use symbolically in order to maintain the registration of the disputed trademark.

（3） Regulations and references to the "Trademark Examination and Adjudication Standards"

Evidence materials used to prove that the disputed trademark has not been used continuously for three years shall meet the following requirements:

(1) Can display the disputed trademark logo used;

(2) Can display the disputed trademark being used on the designated goods/services;

(3) Being able to display the users of the disputed trademark, including both the trademark registrant themselves and others authorized by the trademark registrant. If permission is granted to others for use, it should be able to prove the existence of the permission relationship;

(4) Can display the date of use of the disputed trademark, and should be calculated within three years from the date of revocation of the application;

(5) Can prove the use of the disputed trademark within the jurisdiction of the Trademark Law;

5.3.5 adopts the method of listing to stipulate that trademark use is not considered in the sense of trademark law:

(1) Publication of trademark registration information or declaration by the trademark registrant regarding exclusive rights to their registered trademark;

(2) Not used in the public commercial field;

(3) Only for use as a gift;

(4) Only transfer or licensing without actual use;

(5) Symbolic use solely for the purpose of maintaining trademark registration.

（4） New changes

In recent years, administrative and judicial authorities have undergone a new change in the principle of determining trademark use, based on correcting the phenomenon of trademark registrants "registering without using" and revoking the abuse of applicants caused by absolute registration. The principle has evolved from relying solely on "use in accordance with legal provisions" to using the standard of "use in the sense of trademark law", seeking truth from facts to verify the openness and authenticity of trademark use, and excluding evidence of use that does not comply with the meaning of trademark law.

2、 Trademark Usage Intention

Regulations and references

1. According to the "Trademark Examination and Adjudication Standards", symbolic use solely for the purpose of maintaining trademark registration is not considered as trademark use in the sense of trademark law.

2. The research report of the Beijing Intellectual Property Court on the "Withdrawal of Three" case believes that because the "Withdrawal of Three" case requires genuine and effective use, rather than symbolic use to maintain the existence of the trademark, the use of the trademark often requires a certain degree of continuity and sustainability.

3、 Trademark user

Regulations and references

1. According to Article 66, Paragraph 2 of the Implementing Regulations of the Trademark Law, the evidence materials referred to in the preceding paragraph include the evidence materials of the trademark registrant's use of the registered trademark and the materials of the trademark registrant's permission for others to use the registered trademark.

2. In the "Opinions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization and Confirmation" (hereinafter referred to as the "Authorization and Confirmation Opinions") issued in 2010, it is clearly stated that the use by the trademark owner, the permission of others to use it, and other uses that do not violate the will of the trademark owner can all be recognized as actual use.

In practice, the basic requirement for using evidence is that the evidence needs to reflect the relationship between the trademark registrant, the licensee, and the authorized user.

4、 Trademark logo

Regulations and references

1. According to Article 56 of the Trademark Law, the exclusive right to use a registered trademark is limited to the trademark approved for registration and the goods approved for use.

2. If the evidence of use submitted by the trademark registrant changes the main parts and prominent features of the registered trademark, it cannot be recognized as the use of the registered trademark.

3. Article 20 of the "Opinions on Authorization and Confirmation of Rights" states, "If there are slight differences between the actual use of a trademark and the approved registration of a trademark, but their distinctive features have not been changed, it can be regarded as the use of a registered trademark.

4. In general, changes in font, capitalization, arrangement, color, and between simplified and traditional Chinese characters in the actual use of a registered trademark are generally considered to be "unchanged in their distinctive features" and can be regarded as the use of the registered trademark.

In reality, in addition to considering whether significant features have been changed, from the perspective of trademark registrants collecting evidence, attention should also be paid to submitting a complete chain of evidence to prove usage.

If the trademark owner has multiple trademarks and the actual use of the changed logo directly points to their own registered trademarks, or to other registered trademarks, then the use may not be intended to use the disputed trademark, and thus cannot form a unique correspondence with the exclusive right to use the disputed trademark.

5、 Using goods and services

Regulations and references

Trademark Examination and Trial Standards "and" Beijing High Court: Legal Issues to be Considered in Current Intellectual Property Trial "(May 2016):

1. The use of a registered trademark by a trademark registrant on similar goods other than those approved for use shall not be deemed as the use of the registered trademark.

2. If the trademark registrant uses the registered trademark on the approved goods, the registration on goods similar to the goods can be maintained.

In practice, it is mainly to determine whether the use of goods (services) is consistent with the approved use of goods (services).

6、 Used in commercial activities

Usually, only when the goods have entered the market circulation field can they play a role in identification.

Therefore, in principle, the use of a trademark in the market circulation field (such as sales, advertising, etc.) for the purpose of commercial transactions, so that the relevant public can distinguish different market entities that provide goods or services based on the registered trademark logo, constitutes "use behavior in the sense of trademark law". The use of trademarks that have not entered the market circulation field (such as printing trademarks on product inspection reports, printing trademarks on trademark design contracts, etc.) does not belong to the "use behavior in the sense of trademark law"

7、 Not using legitimate reasons

When defending a trademark, the registrant may explain the legitimate reasons for not using it and provide supporting materials.

Regulations and references

According to the Implementing Regulations of the Trademark Law, the following situations are considered as legitimate reasons for the non use of a registered trademark: force majeure; Stop using due to government policy restrictions; Discontinued due to bankruptcy liquidation; Other legitimate reasons that cannot be attributed to the trademark registrant.

According to the "Opinions on Authorization and Confirmation of Rights", if the trademark owner has the intention to use the trademark truthfully and has the necessary preparation for actual use, but has not actually used the registered trademark due to other objective reasons, it can be recognized as having legitimate reasons.

8、 Precautions

1. The following situations are not considered as trademark use within the meaning of the Trademark Law:

① Publication of trademark registration information or declaration by the trademark registrant regarding exclusive rights to their registered trademark;

② Not used in the public commercial field;

③ Only for use as a gift;

④ Only transfer or licensing without actual use;

⑤ Symbolic use solely for the purpose of maintaining trademark registration.

2. Submitting only the following evidence shall not be considered as trademark use within the meaning of the Trademark Law:

① Sales contracts for goods or agreements or contracts for providing services;

② Written testimony;

③ Difficult to identify whether physical evidence, audio-visual materials, website information, etc. have been modified;

④ Physical objects and replicas.

Source: Official courseware of the public lecture learning platform of the China National Intellectual Property Administration