Sanyou won the administrative dispute involving review of trademark cancellation representing Meiqi Biotechnology Co., LTD

Sanyou client: Meiqi Biotechnology Co., Ltd.
Trial organs: Beijing Intellectual Property Court and Beijing Higher People's Court
Trial result: The Court revoked the first-instance judgment and the sued decision to revoke the review, and ordered the respondent, CNIPA, to make a new decision.

Case facts
Meiqi Biotechnology Co., Ltd. (Meiqi Biotechnology) applied for registration of the trademark "弯弯" No. 512149 on the "Soap" and other goods of Class 3 on April 4, 1989, with the expiry date of exclusive right on February 19, 2030. On December 5, 2017, the third party filed an application to revoke the trademark No. 512149 "弯弯" on the grounds that it had not been used for three consecutive years.

The Trademark Office determined that the use evidence submitted by Meiqi Biotechnology was valid and maintained the registration of the disputed trademark.
The third party refused to accept the cancellation decision and filed an review application. CNIPA determined that the use evidence submitted by Meiqi Biotechnology Company was not sufficient to prove the true and effective commercial use of the disputed trademark on the designated goods within the specified period, and cancelled the registration of the disputed trademark on some of the designated goods.

Meiqi Biotech refused to accept the decision of the revocation review and filed a lawsuit. The court of first instance upheld CNIPA’s decision. Meiqi Biotech filed an appeal with the Beijing Higher People's Court. After the trial, the Court determined that the use evidence submitted by Meiqi Biotechnology Co., Ltd. included notarized sales records on the Alibaba platform, sales invoices, and bank receipts, etc., which could prove that the disputed trademark had been used on the goods for real, legal and effective commercial activities in the review during the specified period. The court therefore revoked the first-instance judgment and the review decision, and the appellee, CNIPA, was ordered to make a new decision.

Typical significance
According to Paragraph 2 of Article 49 of the Trademark Law amended in 2013, if a registered trademark becomes the common name of the goods it is approved to use on, or has not used it for three consecutive years without justifiable reasons, any unit or individual may apply to the Trademark Office to revoke the registered trademark.

At present, due to the surge in the number of trademark applications, when many trademarks are rejected due to the cited trademark, they often resort to the method of revoking the cited trademark on ground of non-use for three consecutive years to overcome the obstacle of rejection, which also leads to a great increase in the number of trademark cancellation cases. It is particularly important for the trademark registrant to actively use the trademark after it is registered and pay attention to keeping the evidence of use.

Use of trademarks includes the use of trademarks on goods, goods packaging or containers, and transaction documents, or the use of trademarks in advertising, exhibitions, and other commercial activities. When a trademark is faced with cancellation request on the grounds that it has not been used for three consecutive years, the trademark registrant can collect evidence from the above aspects. There are generally three issues to pay attention to when submitting use evidence.
1. The use evidence must fall within the specified period.
2. The disputed trademark is used on the approved goods.
3. It belongs to the use of the trademark owner or the use that does not violate the will of the trademark owner, such as the use by the dealer of the trademark.

For trademarks that have actually been used commercially, the trademark owner should strive to maintain the registration of the trademark.