How to prove the use of the trademark when a protection title is asked to terminate the validity

  The trademark which is granted a protection title may be invalidated. When an enterprise thinks that your trademark is only registered and not used, they have the right to file a petition to terminate the protection title. The termination of industrial property rights to a trademark is a matter directly related to the rights and interests of the trademark owner and related parties.

  The request to terminate the protection title is regulated in Clause 1 of Article 95 of Intellectual Property Law:

“1. The validity of a protection title shall be terminated in the following cases:

  a/ Its owner fails to pay the validity maintenance or prolongation fee as prescribed;

  b/ Its owner declares to relinquish the industrial property rights;

  c/ Its owner no longer exists or the owner of a certificate of registered mark is no longer engaged in business activities without any lawful heir;

  d/ The mark has not been used by its owner or his/her licensee without justifiable reasons for 5 consecutive years prior to a request for termination of validity, except where the use is commenced or resumed at least 3 months before the request for termination;

  e/ The owner of a certificate of registered collective mark fails to supervise or ineffectively supervises the implementation of the regulation on use of collective marks;

  f/ The owner of a certificate of registered certification mark violates the regulation on use of certification marks or fails to supervise or ineffectively supervises the implementation of such regulation;

  g/ The geographical conditions decisive to reputation, quality or special characteristics of products bearing a geographical indication have changed resulting in the loss of such reputation, quality or characteristics of products.”

  When there is a request to terminate the validity of a protection title because the trademark is not used, the owner needs to prove that it’s being used:

  – The use of the trademark in commercial activities such as printing trademarks on invoices, vouchers, receipts, import and export notes, sales contracts, product catalogs, signs, billboards, etc;

  – Circulating, advertising for sale, stocking for sale of goods bearing the protected trademark;

  – Import of goods and services bearing the protected trademark.

  The purpose of trademark law is for the owner to put the products or services bearing the trademark into the commercial use. When the trademark is used, the role of industrial property rights in the development of the enterprise can be promoted.

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