In China, there is no mandatory use requirement for a trade mark registration. A trade mark registrant is not required to prove use of its registered mark to the China National Intellectual Property Administration (CNIPA).
However, any third party may apply for full or partial cancellation of a registration on the grounds of non-use of a trade mark for 3 or more years. In such a non-use cancellation proceeding, the registrant can defend its registration by submitting evidence demonstrating effective commercial use of the mark in mainland China within the 3 years prior to the application date of the non-use cancellation action. At first instance, evidence of use in respect of a single one item of the specified goods/services used to be sufficient for the CNIPA to maintain the registration for all the challenged goods/services.
However, recent CNIPA decisions suggest that a stricter approach is now being applied at first instance. While it seems the CNIPA still maintains a registration for all goods/services in the subclass(es) where use on one or more items is proved, the practice now seems to be to cancel the registration partly in respect of the subclasses in which no use on any item has been proved.
This new approach at first instance follows more closely the practice applied to the appeals (i.e. second instance) in non-use cancellation proceedings. Examiners on the Appeal Board introduced the stricter standard several years ago, but it now appears a similar approach is being applied at the initial examination stage for non-use cancellation actions. It seems that the CNIPA wants to make examination standards for non-use cancellation proceedings to be consistent across different adjudication levels, even though there has been no official announcement so far.
These changes put defensive registrations at greater risk, although of course any challenge still has to arise at the behest of a third party. While maintaining defensive registrations in the face of third party non-use challenge may now be more difficult, the registration of trade marks for defensive purposes remains a reasonably cost-effective barrier or deterrent. Assuming the importance warrants investment of the necessary resources, a rights owner could attempt to circumvent the weaknesses inherent in a defensive registration strategy by embarking on a re-registration program every 3 years or so to keep its defensive registration portfolio immune to non-use challenge.
