Evidence of sales not sufficient for defending against non-use, but enough to determine infringement: the EVISU Judgment

24 Jun 2026

By Elena Wu

In the EVISU judgment issued on April 20, 2026, the Guangdong High People's Court confirmed that sales evidence considered insufficient to preserve a trademark registration in a non-use cancellation may still demonstrate that the sign was in fact used so that trademark infringement is constituted.

Brushed-up orders, related-party transactions, or symbolic sales (the usual suspects of fake evidence in non-use cancellation) are not considered real usage in commerce for non-use cancellation purpose, but are considered usage in infringement proceeding.

The decision also provides important guidance on cross-class protection for well-known trademarks, the treatment of infringement during the life of a defendant's own trademark registration, and the effect of administrative proceedings on the limitation period for damages claims.

For both Chinese and international brand owners, the judgment offers a sophisticated and practical view of how trademark law operates when administrative and civil proceedings intersect.

The Background of the Dispute

EVISU is a well-known fashion brand recognized for its premium denim and distinctive branding. Its owner, JELP International Limited, holds several registrations for the mark "EVISU" covering clothing and related goods.

In 2013, an individual applied to register the mark "Evisu" for headphones and related electronic products. The registration was granted in 2015. The registrant and associated manufacturers subsequently used the signs "Evisu" and "EVISU" on headphones and promoted the products through the domain name "www.evisuhf.com".

JELP International brought a trademark infringement action, arguing that the defendants were taking unfair advantage of the reputation of the EVISU brand and weakening the distinctiveness of its well-known marks.

The first-instance court (Shenzhen Intermediate People's Court) found infringement and awarded RMB 1 million in damages. The defendants appealed. Guangdong High People's Court upheld the judgment, while refining several aspects of the legal reasoning.

It is curious to notice that the trademark EVISU belonging to the defendant was cancelled in 2022, but the Court found that infringement was constituted even before the cancellation since EVISU well-known status is confirmed from 2018 on. We will explain this point more widely later.

Two Different Legal Questions, Two Different Standards

One of the most important aspects of the decision concerns the distinction between trademark administrative proceedings and civil infringement litigation.

In China, a trademark registration may be cancelled if it has not been genuinely used for three consecutive years. In those proceedings, authorities closely scrutinize whether the evidence reflects authentic commercial use. Transactions created primarily to preserve a registration, including brushed-up orders or artificial sales, may be disregarded.

Civil infringement cases involve a different inquiry. The central question is whether the sign was used in the course of trade to identify the source of goods.

The Guangdong High Court explained that these two standards serve different purposes. Conduct that is insufficient to maintain a registration may nevertheless demonstrate that consumers encountered the sign as a trademark in the marketplace.

This distinction is highly significant. It confirms that the rejection of evidence in a non-use cancellation (a trademark administrative proceeding) context does not automatically shield a party from civil infringement liability.

Determining When EVISU Became Well Known

The Court also addressed the timing of well-known trademark recognition.

Rather than treating fame as a fixed status, the Court evaluated the reputation of the EVISU mark at several different dates, including the defendant's trademark filing in 2013, January 2018, and the day after the defendant's registration was cancelled in November 2022.

The evidence was insufficient to prove that EVISU was already well known in China in 2013. However, the Court concluded that by January 2018 the mark had achieved well-known status.

In reaching this conclusion, the Court considered not only the brand's activities in continental China but also its substantial reputation in the Hong Kong Special Administrative Region and the Macao Special Administrative Region.

Given the movement of consumers and goods across these markets, the Court held that overseas recognition could be relevant as an "other factor" in assessing fame in China.

A Registered Trademark Does Not Provide Unlimited Protection

A particularly nuanced part of the judgment concerns the effect of the defendant's own trademark registration.

During the period when the "Evisu" registration remained valid, the Court distinguished between use that corresponded substantially to the registered form and use that altered its distinctive features.

The Court held that use of the registered sign itself should generally not be treated as infringement while the registration remained in force. However, this protection did not extend to modified logos or to the domain name "evisuhf.com", which went beyond the scope of the registered mark.

In other words, the second-instance court held that the EVISU brand had not yet attained well-known status in China in 2013, but was officially recognized as a well-known trademark on clothing as of January 2018. Consequently, the court determined that the infringement timeline should commence from January 2018.

Prior to 2018, the use did not constitute infringement for two reasons: first, the prior mark had not yet reached a level of public recognition; and second, the use occurred on headphones, which are dissimilar goods relative to clothing.

From 2018 onwards, the situation bifurcated:

Use on Goods:
Since the defendant's trademark registration remained valid until its cancellation, the use of the mark on headphones did not constitute trademark infringement during this interim period (as it fell within the scope of the registered trademark right).
Use on Domain Names:
However, the use of the mark within the domain name "evisuhf.com" exceeded the scope of the defendant's registered trademark protection. Therefore, the infringement was established for the domain name starting from January 2018.

After the defendant's registration was cancelled on November 13, 2022, the continued use of "Evisu" and "EVISU" on headphones also constituted infringement.

The case serves as an important reminder that owning a registration is not a blanket defense. Protection applies only to use that remains within the scope of the registered mark.

Why Headphones Were Considered Sufficiently Related to Clothing

Although headphones and clothing are not similar goods in the traditional classification system, the Court found a meaningful commercial connection between them.

Modern fashion brands routinely expand into lifestyle products and accessories. Consumers may therefore perceive electronic products bearing a famous fashion mark as part of a legitimate brand extension.

Because the defendants closely copied the EVISU mark and used it on products capable of evoking such an association, the Court concluded that consumers were likely to assume a commercial connection with the genuine brand.

This likelihood of association was sufficient to establish dilution and unfair exploitation of a well-known trademark's reputation.

Administrative Proceedings and the Limitation Period

The judgment also addresses an issue of practical importance for rights holders.

The defendants argued that the claim for damages was time-barred. The Court rejected this defense, holding that the trademark owner's decision to initiate administrative proceedings to cancel the defendant's registration formed part of its broader effort to enforce its rights.

Because the defendant's registration constituted a legal obstacle to a full damages claim, the cancellation proceedings interrupted the limitation period. The statutory period began to run again once the cancellation became effective.

This approach protects trademark owners from losing their right to compensation while pursuing necessary administrative remedies.

Damages and Evidentiary Obstruction

The Court affirmed the award of RMB 1 million in damages and enforcement costs.

In calculating compensation, the Court relied on evidence submitted by the trademark owner and drew adverse inferences from the defendants' refusal to provide accounting records without justification.

This reflects a well-established principle in Chinese trademark litigation: when an infringer controls relevant financial information but refuses to disclose it, courts may estimate damages based on the available evidence.

Key Takeaways for Brand Owners

This decision provides several important lessons for businesses operating in China.

Evidence that fails to preserve a registration in a non-use cancellation proceeding may still prove trademark use in civil litigation.
Well-known trademark status is assessed at specific points in time and may take into account reputation in Hong Kong and Macau when relevant to consumer perception in continental China.
A registered trademark offers protection only to the extent that the sign is used in a manner consistent with the registered form.
Trademark non-use cancellation proceedings may interrupt the limitation period for damages when they are a necessary step in enforcing rights.
Chinese courts remain willing to extend cross-class protection to well-known trademarks where consumers are likely to assume a connection between products and the famous brand.

Conclusion

The Guangdong High People's Court's decision in Case No. (2024) Yue Min Zhong No. 3719 demonstrates the increasing sophistication of Chinese trademark jurisprudence.

By distinguishing between the objectives of administrative and civil proceedings, carefully assessing the evolution of trademark fame, and clarifying the limits of protection afforded by a defendant's own registration, the Court has provided valuable guidance for companies managing trademark portfolios in China.

International and Chinese brand owners alike should consider that even unconventional evidence of use may carry significant legal consequences, and well-known trademarks continue to enjoy powerful protection across product categories when their reputation is strong enough to influence consumer expectations.

This case is more than just a victory for a fashion label. For years, some operators have gambled that "brush orders" or token sales would be enough to secure their trademark rights against cancellation.

This ruling dismantles that illusion.

By drawing a sharp line between the evidentiary thresholds for administrative cancellation and civil infringement, the Guangdong High Court has reminded us that the marketplace reality (how consumers perceive a mark) is what ultimately matters in an infringement dispute. For brand owners, the lesson is equally sharp: your enforcement strategy must be holistic, bridging administrative actions and civil litigation, because a mark's survival in one arena does not guarantee immunity in another.