By Joy Dong
A recent Chinese court decision reminds us: trademarks are only as strong as their use.
A company (let’s call it “Company G”) was the licensed user of a registered trademark called “小恶魔” ("Xiǎoèmó, Little Devil") for clothing. Another company (“Company B”) applied to cancel the trademark in 2022, citing the fact that it had not been used for three consecutive years, a move known as a “non-use cancellation” (撤三, chèsān).
Although China’s Trademark Office initially allowed the trademark to survive for part of the designated goods, later court rulings overturned that, stating that Company G had not provided enough evidence to show the trademark had been actively used between 2019 and 2022.
But here’s where things get more interesting.
In 2023, while the non-use cancellation proceedings were still ongoing, Company G sued Company B for trademark infringement, arguing that Company B had used “小恶魔 (xiǎoèmó)” in online ads and promotions for clothing, which caused confusion.
At first, the lower court sided with Company G and awarded them compensation. But on appeal, the Zhejiang High People’s Court reversed the decision — and here’s why.
The Court’s Key Takeaway
If you don’t use your trademark, you may lose not only the mark but also the right to sue for infringement.
Three Time Periods That Matter in a Non-Use Case
The court split the timeline into three phases:
Before the cancellation was filed:
The trademark is valid. You can enforce your rights.
From the date the cancellation request is filed until the cancellation is officially published:
The trademark is technically still valid, but practically speaking, its protection is already weakened or "suspended".
After the cancellation is officially published:
The trademark is dead. The owner no longer has any legal rights.
Even if the trademark owner uses the mark after the cancellation request is filed, such use cannot retroactively restore its legal value. The aim is to prevent unfair infringement claims that rely on the formal delay between the start of cancellation proceedings and the official publication of cancellation.
In this case, the alleged infringing conduct occurred across both Stage One and Stage Two:
During Stage One, the mark was valid and enforceable. However, since the trademark owner failed to prove actual use during the three years before the cancellation request, the infringement caused no actual loss, and the claim for damages was denied.
During Stage Two, the Disputed Mark was already considered substantively unworthy of protection, even though it was not yet formally canceled. Thus, the court rejected the claims for injunctive relief and damages.
Trademark protection arises from the mark's ability to distinguish goods/services and carry goodwill. A trademark that is ultimately canceled for non-use has already lost this function at the time cancellation proceedings begin.
Any use of the trademark after this point cannot restore its enforceability. Consequently, the Disputed Mark could not benefit from retroactive judicial protection between the filing and announcement of the cancellation.
Why This Matters
Trademark rights aren’t just about owning a registration certificate. They’re about showing the market (and the courts) that you’re using your brand. If you stop using a registered trademark for too long, it becomes vulnerable to cancellation. And if it’s canceled, you may not be able to:
Stop competitors from using similar names or designs;
Claim compensation;
Keep building your brand protection strategy on that registration.
Legal Implications
A registered trademark has no automatic power to stop infringement if it’s been unused for years.
Non-use = no protection. And once the cancellation process is underway, courts may see the trademark as no longer enforceable. Filing a lawsuit after your trademark is already under attack for non-use is risky, even if it looks like the registration is still alive.
Business Takeaways
Use your trademarks actively. Even if it’s a defensive mark or one you don’t promote heavily, find ways to use it commercially.
Keep clear usage records. Contracts, product photos, sales invoices, social media promotions: you may need these to prove use.
Update your trademark strategy regularly. Especially if your branding evolves (e.g., logo updates), make sure the registered versions are still in use.
Be cautious before suing. If a mark hasn’t been used in a while and could be vulnerable to cancellation, consult counsel before filing an infringement case.
Final Thought
This case highlights a deeper truth in Chinese trademark law: registration gives you a right, but only active use gives you power. Trademarks aren’t trophies, they’re tools. If left on the shelf too long, they lose their value.
If you want your brand protection to hold up in court, keep your marks alive in the market.
Need help navigating trademark use, evidence collection, or risk-proofing your portfolio? Allasya Law & IP can help you build a strategy that ensures your marks are not just protected, but enforceable.