The use of trademarks in the sense of trademark law refers to the use of trademarks in commodity packaging, containers and commodity transaction documents, or the use of trademarks in advertising, exhibitions or other commercial activities to identify the source of goods or services; the use of the trademark by the owner himself, the use by others with permission of the owner and any other use that does not violate the will of the trademark owner can be recognized as the use referred to in the Trademark Law.
However, if the trademark is only used symbolically in order to maintain the proposed trademark registration, without real intention of use, it can not prove the effective use of the trademark. This point of view is illustrated by a case of administrative lawsuit over cancellation review dispute represented by the author:
In the administrative lawsuit of trademark Cancellation review of No. 9828931 "尘埃 CHENAI" by a Certain E-commerce Company in Shishi City against Trademark Review board of the CNIPA and Guangzhou Oubeika Garment Co., LTD., the author's agency participated in the lawsuit as the agent of the third party Guangzhou Oubeika Garment Co., LTD. In this case, the Certain E-commerce Company in Shishi City claimed that the proposed mark was used effectively during the designated period from January 3, 2014 to January 2, 2017. And its evidences include a 尘埃brand cotton-padded clothes sales contract of 169 YUAN signed with Shi in December, 2014; a sales contract of 尘埃brand knitted hoodie with the amount of 173 YUAN signed with Cheng in March, 2015; and a sales contract of 尘埃brand knitted hoodie with the amount of 238 YUAN signed with Pu in January, 2015.
However, it is unavoidably far-fetched for a certain e-commerce company in Shishi city to assert the effective use of a trademark only on the basis of four sales contracts. Imagine a normal operation clothing company should not be bothered to sign contracts with its customers which are only individuals and the amount of the order is only one piece with several hundred yuan when selling its garments, which is totally not in line with the normal business practices. Nobody will sign a sales contract with the store when buying a garment with the price of more than a hundred yuan. And the plaintiff has only four transactions in three years, and the total amount of the four sales contracts is only 759 yuan, so it is inevitable to be suspected of symbolic use to maintain the trademark registration. After our lawyer's reasonable analysis, the plaintiff felt guilty and did not have good chances to win the case, and finally withdrew the lawsuit.
The author thinks that in dealing with the case of non-use cancellation, the use evidence submitted by the trademark registrant can be considered from the following aspects, so as to determine whether it is symbolic use:
1. Review the evidence quantity of designated goods or services to be sold of the trademark;
2. Review the formation time of the use evidences. If it is used before the end of the three-year period and rarely used after the end of the three-year period, it will be considered as symbolic use;
3. Only a small amount of advertising evidences for the review trademark are provided without other evidence;
4. To review whether there is a correlation between the trademark registrant and the cooperative subject;
5. To review whether it is the usage that is not consistent with business practice, based on trading and purchasing habits.
Being the soul of an enterprise , trademarks play an important role in the business development of the enterprise. When we operate our own trademarks, we should try our best to give full play to the identification role and market value of trademarks, rather than idle trademarks and waste trademark resources.
In order to prevent the painstakingly managed trademark from being canceled through the non-use cancellation procedures, the author suggests that enterprises start from the following aspects :
1. The use of registered trademarks shall be standardized and shall be strictly in accordance with the examples of registered trademarks;
2. Mark registered trademarks on transaction documents, invoices, etc;
3. Mark the registered trademark in a prominent place on promotional materials;
4. Specially managed all information relating to the circulation of registered trademarks.
