68 69 How to Deal with the Registered Trademark by others to File a Three-Year Non-Use Revocation Application CASE REVIEW A Electric Appliance Corporation in ZHONGSHAN (hereinafter referred to as the Appliance Corporation) is entitled to a certain trademark (hereinafter referred to as the disputed trademark) on “washing machine, washing machine dryer, vacuum cleaner” in accordance with the law.In early 2016, the Appliance Corporation received a Notice on Providing Evidence of the Use of Registered Trademarks, which a notice of revocation application, requesting it to provide evidence of the actual use of the trademarks in the period from December 4, 2012 to December 3, 2015 in the products of “washing machine, washing machine dryer, vacuum cleaner”. The Electric Appliance Corporation provided relevant evidence of use, and an invoice for a washing machine, a washing machine dryer, and a vacuum cleaner bearing the disputed trademark. The Trademark Office and the Trademark Review and Adjudication Board found that the evidence of use provided by the Appliance Corporation was valid and upheld the trademark in dispute.Unsatisfied, the revocation applicant filed a trademark administrative lawsuit with the Beijing Intellectual Property Court, which, in the first instance and in the second instance judgment of the Beijing Municipal Higher People’s Court, found that the evidence provided by the Electrical Appliance Corporation only proved the symbolic use of the disputed trademark , and did not belong to the actual use of the trademarks in the sense of the Trademark Law. After four years, the registered trademark was finally revoked according to the law because it had ceased to be used for three consecutive years. I. THE LEGAL BASIS OF THE TRADEMARK REVOCATION SYSTEM AND THE CONDITIONS FOR FILING A COMPLAINT. Article 49(2) of the Trademark Law stipulates that if a registered trademark becomes the common name of the goods for which it is authorized to be used, or is not used for three consecutive years without justifiable reasons, any unit or individual may apply to the Trademark Office to revoke the registered trademark. The Trademark Office shall make a decision within nine months from the date of receipt of the application. If there are special circumstances that require an extension, it may be extended for three months with the approval of the administrative department for industry and commerce under the State Council. According to this provision, the following three conditions shall be met in order to file a three-year non-use revocation application: 1. The trademark for which a revocation application is filed must be a registered trademark that has been registered for three years or more. If the registered trademark is finally registered after opposition and nonregistration review, the date of the registration notice of the registered trademark shall be the starting date of the three-year period. 2. After preliminary judgment, the registered trademark has not been actually used in the sense of trademark law in the three years prior to the filing of the three-year non-use revocation application. CHAPTER 5
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