The Czech Trademark Act requires owners of trademarks registered in the Czech Republic to use their trademark, or otherwise the trademarks become vulnerable to cancellation on the ground of non-use. Under the terms of Article 25, par. 1) b. of the currently valid Act, any third party, or for that matter, the Office of Industrial Property itself, may initiate a cancellation action if a trademark has not been used in the Czech Republic for at least five years before institution of a proceeding for its cancellation. The owner of the trademark must then prove use in earnest during the five year period preceding the first notice of the cancellation action or, in the alternative, he must properly explain his failure to use the trademark. The Act additionally states that the use of a trademark by a third party by agreement shall be considered proper use.
Resulting from the text of the above mentioned provision, one can assume that any newly registered trademark enjoys the benefit that during the first five years after its registration it does face any risk of cancellation based on non-use. However, immediately thereafter any unused trademark may be attacked by any third party. In case of such an attack, the burden of proof that use was initiated in earnest or that proper justification for non-use exists will be on the trademark owner.
Any actual proper use of the trademark in the Czech Republic renews the validity in terms of use, regardless of whether it had not been used in the immediately preceding five years or longer, because the trademark is only subject to cancellation if the use cannot be proved for the period of five years immediately preceding the first notice of the cancellation action
Actual use does not have to be proved to the Office of Industrial Property independent of a cancellation action and, provided a trademark is not attacked under the use requirement provisions, it would remain valid in spite of the fact it has not been used.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
