China: TRAB Accepts Promotion Of Trademark On Social Media As Evidence Of Use In Non-Use Cancellation Proceeding

In a non-use cancellation action decided in March 2017, the China Trademark Review & Adjudication Board (TRAB) accepted the evidence provided by LexField on behalf of a US company and rejected the action filed by an Australian company.

In the highlight of the case, TRAB found the trademark registrant's promotion of the trademark through its official account on the China microblogging website Sina Weibo sufficient grounds to establish use of the trademark in China. The trademark registrant is involved in the amusement park industry and does not yet have an actual business operation in China.

This development shows that the TRAB holds an open opinion on advertising a trademark through social media, and this provides a relatively easy and cost-efficient solution for preparing evidence of the use of trademarks in China, especially for overseas companies whose goods/services have not yet launched in China.

China Trademark Law has a usage requirement for registered trademarks, and a trademark that has not been used for three or more consecutive years after its registration is liable for cancellation. In the event of a non-use cancellation action, the trademark registrant should assume the burden of proof, and if no valid evidence of use of the trademark is presented, then the trademark registration may be cancelled. This makes it important for trademark registrants to prepare evidence on the use of their trademarks in China.

In accordance with the law, the use of a trademark shall include the use of the trademark on goods/services, product packaging or containers, or on trading documents, as well as the use of the trademark in advertising, exhibition or any other business activities. Obviously, the TRAB considers use of the trademark on social media as a form of "advertising" of the trademark.

The most popular social media networks in China include Sina Weibo and WeChat.

Originally published 2017-05-03

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