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Procedure and Evidence Requirements for Trademark Cancellation in Non-Use Areas
04.14.2021

Procedure and Evidence Requirements for Trademark Cancellation in Non-Use Areas

Cancellation is a request to cancel all or part of the registered trademark. The reasons for cancellation due to non-use are as follows:
– The trademark is not actually used in Hong Kong by the owner for its registered goods or services, or with his consent, it has not been used for more than three consecutive years without reasonable reasons (such as import restrictions on goods or services protected by the trademark, or other government requirements).

 Procedure requirements:

1. The requester begins to request for cancellation, by submitting a statutory form together with the statement of reasons for request and the evidence supporting the reasons for cancellation due to non-use.

2. The owner can submit a counter-statement within 6 months after receiving the notice of cancellation, stating evidence related to the use of the trademark.

3. If the owner does not submit counter-statements and evidence of use, the Registrar will usually make a conclusion that the cancellation request is not opposed by the owner, and will make a decision under appropriate circumstances based on the information and evidence before him.

 The content of the statement:

The main facts on which the request is based shall be listed, in particular the date when the request for cancellation takes effect, and the cancellation of the goods or services covered by the existing registration.

 Evidence requirements:

1. Evidence requirements for non-use cancellation usually include the investigator’s statutory declaration, in addition to the non-use status of the trademark during the relevant period, and the results of inquiry.

2. The standard of proof is the preliminary standard of evidence for not using the relevant trademark.

3. If the owner does not submit the counter-statements and evidence of use, and the evidence submitted by the requester for cancelling the registered trademark does not meet the prima facie requirements, the registrar will inevitably issue a useful cancellation.

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Benny Kong & Tsai, Solicitors

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