What Does Not Count as Trademark Use in China

Introduction: the evidence that does not count

A foreign brand owner facing a non-use cancellation in China is usually advised to "file evidence of use". The advice is correct but incomplete. Chinese practice maintains a list of materials that, on their own, are not treated as use of a trademark in the sense of the Trademark Law. Filing a thick bundle drawn from that list is not merely unhelpful. It can be actively damaging, because it signals that the owner has nothing better.

This article sets out what falls outside the definition, and what to do instead.

The four categories that do not count

Submitted alone, the following are not regarded as trademark use under the Trademark Law:

Sales contracts, or agreements and contracts for the provision of services. A contract proves an intention to trade. It does not prove that a branded product reached a customer.
Written testimony. A statement, however detailed, that the mark was used is worth little without objective corroboration.
Physical exhibits, audio-visual material, website information and similar items that cannot readily be shown to be unaltered. Where authenticity cannot be verified on the face of the material, it is discounted.
Physical objects and reproductions. A sample bearing the mark, standing alone, does not show that anything was sold under it.

The common thread is that each category is either purely unilateral, or incapable of showing that the mark reached the relevant public in connection with the relevant goods or services.

It is worth being precise about what "on their own" means, because it is the operative phrase. A contract is not inadmissible or irrelevant. It simply cannot carry the case by itself, because the office is asking a factual question — did this mark reach the Chinese market in connection with these goods during this period — and a contract does not answer it. The same applies to each of the other three categories. Filed alongside dated third-party material, they become supporting evidence. Filed alone, they establish nothing the office needs.

Why contracts alone are the classic mistake

The most frequent failure is a file consisting of distribution agreements, purchase orders and invoices between the owner and a Chinese subsidiary or distributor. Nothing in it shows the mark appearing on goods that reached a consumer.

Production of a contract establishes at most that someone intended to use the mark, or was licensed to. Chinese examiners in cancellation proceedings are looking for use in the course of trade, in China, on or in connection with the registered goods or services, during the relevant three-year window.

What the file should actually contain instead

The strongest evidence is material that a third party generated in the ordinary course of business, that carries the mark, and that is dated within the relevant period. In practice:

Invoices showing the mark and the goods, issued to Chinese customers with a date inside the period.
Product packaging, labels and photographs of goods on the Chinese market bearing the mark.
Advertising in Chinese media, publications or platforms, with dates and evidence of circulation.
Materials from trade fairs or exhibitions held in China, showing the mark and the goods.
Website and e-commerce listings on Chinese platforms, with order records and delivery data.

The principle is corroboration. A contract is useful when it is tied to an invoice, and the invoice is tied to a shipment, and the shipment is tied to a product carrying the mark. A contract on its own is not.

An illustration of the difference

Consider two files prepared by two owners of the same mark.

The first owner files a licence agreement with its Chinese distributor, a board minute authorising the China launch, and a photograph of a sample product bearing the mark. Each item is genuine. The agreement is unsigned by the distributor, the minute is internal, and the product was never sold. Nothing in the file shows that a single unit reached a Chinese customer.

The second owner files three invoices issued to Chinese retailers, each showing the mark and the registered goods, dated inside the window; a photograph of the goods on a Chinese retail shelf taken at a date that can be corroborated; and a page from a Chinese trade publication carrying the mark and dated within the same period. There is no contract in the file at all.

The second file wins. The first is a case about a plan. The second is a case about trade.

How the three-year window interacts with the evidence

A cancellation is not directed at whether the mark was ever used. It is directed at a defined three-year period. Evidence from outside that window, however impressive, does not establish use within it.

This produces a specific trap for long-established brands. An owner that used the mark heavily in China between 2015 and 2019, and then withdrew, may have an excellent historical archive and nothing from the years that matter. Files should be assembled by reference to the window first and the archive second, not the other way round.

It also means that a gap in the middle of a period of apparent use is significant. The office reads the window as a whole, and a file that demonstrates trade in the first month and the last month but nothing between invites the question of what happened in the interval.

Service marks: the same idea, different evidence

For service marks the office applies the same logic. Use of a mark in relation to services includes its use on service premises, in service manuals and signage, on staff clothing, on menus, price lists, stationery and similar items tied to the services. It also includes the mark on documents connected with the services, such as invoices and service agreements, and use in broadcast, print, advertising or at exhibitions held in China.

Note the pattern. The listed forms all involve the mark appearing in the course of actually providing or promoting the service, not merely in an internal arrangement to provide it.

Legitimate reasons for non-use are a separate defence

It is worth separating two things. The point above is about what counts as use. There is a separate route for an owner who can show a legitimate reason for not using the mark at all. The recognised grounds are force majeure, government policy restrictions, bankruptcy liquidation, and other legitimate grounds not attributable to the registrant.

That route exists and is occasionally decisive, but it requires facts, not arguments. "The Chinese market was difficult" is not a legitimate reason. A documented import restriction, an actual insolvency, or a government measure that prevented sale may be.

Frequently asked questions

Are contracts enough to prove use of a Chinese trademark?

No. Sales contracts, and agreements or contracts for the provision of services, are expressly listed among the materials that, on their own, are not treated as trademark use. They show an intention to trade rather than use reaching the relevant public.

Is a written statement or declaration from a distributor acceptable?

Written testimony is on the excluded list. It is not worthless if it accompanies objective evidence, but it will not carry a case alone.

Why are photographs and website screenshots treated cautiously?

Because they are difficult to verify as unaltered, and physical objects and reproductions standing alone do not show that anything was sold under the mark. Material that cannot be shown to be authentic is discounted.

What is the single best category of evidence?

Invoices issued to Chinese customers, showing the mark and the goods, dated inside the relevant three-year period. They are third-party generated, dated, and connect the mark to a real transaction.

Does the same standard apply to service marks?

Yes. The office recognises use on service premises, signage, staff clothing, menus, price lists, stationery and documents connected with the services, as well as advertising and exhibition use.

What if I genuinely did not use the mark in China?

There is a separate defence of legitimate reasons for non-use. Recognised grounds are force majeure, government policy restrictions, bankruptcy liquidation, and other legitimate grounds not attributable to the registrant.

How should evidence be organised?

Chronologically, and with each item cross-referenced. Group the material by the goods or services it relates to, and make the connection between contract, invoice and product explicit rather than leaving the examiner to infer it.