Standard Use of Trademarks in China: Compliance Requirements and Legal Risks

Standard use of trademarks in China is essential for maintaining trademark validity and avoiding legal exposure. This article explains what constitutes genuine and compliant use under Chinese law, and the risks associated with non‑use or non‑standard use. It also outlines practical steps brand owners should take to safeguard their trademark portfolios.

In China’s trademark regime, the concept of “use” is not merely a commercial practice but a core legal requirement that directly impacts the acquisition, maintenance, and enforcement of trademark rights. As the China National Intellectual Property Administration (CNIPA) and the People’s Courts continue to tighten scrutiny over how trademarks are used, non‑use or improper use has become a major source of legal exposure for trademark owners.

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Against this backdrop, it is essential for brand owners, particularly foreign businesses operating in China, to understand what constitutes standard use of a registered trademark under Chinese law and the potential consequences of non‑use or non‑standard use. This article provides a systematic overview of China’s legal requirements, judicial standards, and practical risks associated with trademark use.

Legal basis for trademark use in China

China adopts a use-based maintenance system for registered trademarks. The primary legal bases include:

• The Trademark Law of the People’s Republic of China;
• The Implementing Regulations of the Trademark Law;
• Relevant judicial interpretations of the Supreme People’s Court; and
• Administrative and judicial practice of the CNIPA and the courts.

Under Article 49 of the Trademark Law, a registered trademark may be revoked if it has not been used for three consecutive years without justified reasons, upon application of any entity or individual. This provision makes “use” a statutory duty rather than a mere prerogative of the trademark owner.

What constitutes “use” of a trademark

Definition

According to Chinese law and practice, “use of a trademark” refers to the use of the trademark for the purpose of identifying the source of goods or services in commercial activities. Such use must be public, genuine, and commercial in nature.

Purely symbolic, internal, or defensive use, which does not play the function of distinguishing the source of goods or services, is generally insufficient.

Recognized forms of use

Trademark use may take various forms, including but not limited to:

• Affixing the trademark to goods, product packaging, containers, labels, or tags;
• Using the trademark on service premises, business documents, or service-related facilities;
• Use in sales, distribution, import, or export activities; and
• Use in advertising, promotion, exhibitions, or other commercial publicity, provided that such use is connected with actual commercial transactions.

Notably, use solely in trademark registration, renewal, or assignment documents does not constitute trademark use.

Standard use of registered trademarks

Consistency with the registered trademark

Standard use requires the trademark to be used in a form consistent with the registered version. This includes consistency in:

• The overall composition of the mark;
• The distinctive elements;
• The language, characters, and design elements.

Minor alterations that do not affect the distinctive features of the registered trademark may be deemed as non-standard use of the registered trademark, and the supervision authority may require the owner to make corrections within a stipulated period; should the correction fail to be made within a stipulated period, the authority may revoke the registered trademark.  However, changes such as adding or deleting distinctive elements, altering Chinese characters, or substantially modifying the graphic design may be deemed use of a different mark, rather than use of the registered trademark.

Use on approved goods or services

Trademark use must correspond to the goods or services approved in the registration. Use beyond the approved scope may not be recognized as valid use for the purpose of maintaining registration and may also give rise to infringement risks vis-à-vis prior rights.

Proper indication of trademark status

While failure to mark a registered trademark with the symbol “®” does not invalidate trademark use, misuse of the ® symbol on unregistered marks or beyond the approved scope may constitute false representation and result in administrative penalties.

Legal risks of non-use of trademarks

Risk of non-use revocation

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The most direct consequence of non-use is revocation due to three consecutive years of non-use. In non-use cancellation proceedings, the burden of proof lies primarily with the trademark registrant, who must submit evidence demonstrating genuine and effective use within the relevant period.

If the evidence is insufficient, fragmented, or fails to demonstrate commercial use, the trademark is likely to be revoked.

Weakening of enforcement rights

Even if a trademark has not yet been revoked, a lack of actual use may significantly weaken its enforceability. In infringement litigation, courts tend to scrutinize whether the trademark has been genuinely used, particularly when determining:

• The likelihood of confusion;
• The scope of protection; and
• The calculation of damages.

A trademark that exists only “on paper” often receives limited protection.

Impact on well-known trademark recognition

Actual and continuous use is a fundamental prerequisite for recognition as a well-known trademark in China. Non-use or minimal use effectively precludes such recognition.

Legal risks of non-standard use

Failure to defend against non-use challenges

If a trademark owner uses a mark in a form substantially different from the registered version, such use may not be recognized as valid. As a result, even though the brand is used in the market, the registered trademark may still be revoked due to “non-use” in legal terms.

Infringement and unfair competition risks

Using a modified mark or using the trademark outside the approved scope may expose the user to infringement claims by prior rights holders. In certain circumstances, such conduct may also constitute unfair competition under the Anti-Unfair Competition Law.

Internal compliance and management risks

In practice, inconsistent trademark use often arises from poor internal brand management, such as inconsistent use by subsidiaries, distributors, or licensees. Improper use by authorized parties may undermine the legal stability of the trademark portfolio.

Practical recommendations

To mitigate the above risks, trademark owners are advised to:

• Ensure timely and continuous use of registered trademarks in commercial activities;
• Strictly follow the registered form of the trademark in actual use;
• Regularly audit trademark use evidence, including contracts, invoices, advertisements, and sales records;
• Establish internal trademark compliance guidelines for affiliates and licensees; and
• Review and adjust trademark portfolios to align registrations with actual business needs.

Conclusion

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In China, trademark rights are not static assets but dynamic rights that depend on proper and continuous use. Standard use of trademarks not only serves as a shield against non-use revocation but also forms the foundation for effective enforcement and long-term brand value.

As regulatory and judicial standards continue to evolve, trademark owners should adopt a proactive and compliance-oriented approach to trademark use, transforming legal requirements into a strategic advantage in brand protection.

Given the complexity of China’s trademark use standards and the evolving practice of the CNIPA and the courts, foreign brand owners are encouraged to seek guidance from experienced local professionals. A qualified local agent, such as Dezan Shira & Associates, can provide practical, China-specific advice on trademark use compliance, risk assessment, evidence management, and overall brand protection strategies. To arrange a consultation, please contact China@dezshira.com.

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