Trademark no. 9369681 was registered on “shampoo, cosmetics, lipsticks, nail varnish”in class 3 by Guangzhou Aibeifu Cosmetics Co., Ltd. (hereafter referred as “respondent”) on May 7, 2012. Artecoll Medical Investment Co., Ltd.( hereafter referred as “applicant”) filed a cancellation application against this registered mark based on non-use of three consecutive years on June 23, 2015, and on April 26, 2016, Chinese Trademark Office made a decision to maintain this mark.
The applicant was not satisfied with this decision and filed a review at Trademark Review and Adjudication Board (TRAB) .
2．Decision of Review
The Trademark Review and Adjudication Board hold that although the respondent filed cooperation agreements, purchase and sales contracts, bills of sales, contracts of printing, invoices, etc., these documents can only prove the use of the mark on “facial mask”, not on approved goods “cosmetics, etc.” of the mark. Therefore, these evidences cannot prove the use of the mark on the approved goods and the mark shall be cancelled.
According to Paragraph 2, Article 49 of the Trademark Law, where the registered trademark has not been used for three consecutive years without proper reason, any entity or individual may file a cancellation application with the Trademark Office against this mark. According to article 56 of the Trademark Law, the use of the registered mark shall be limited to the goods which have been approved. If a registered mark is used on approved goods, the registration of the mark shall be maintained on the similar goods. If a registered mark is used on goods beyond the scope of approval, such use cannot constitute use of this mark.
In the subject case, the mark is used on goods “facial mask”, which is similar to “shampoo, cosmetics, lipsticks, nail varnish”, but as “facial mask” is not one of the approved goods, the Trademark Review and Adjudication Board affirmed that the registered mark had not been effectively and commercially used on “shampoo, cosmetics, lipsticks, nail varnish” for three consecutive years and shall be cancelled.