Min YAO
Chinese Attorney-at-Law
Wei Chixue Law Firm
Chinese Attorney-at-Law
Wei Chixue Law Firm
It has become commonplace for Chinese consumers to purchase imported goods within the country. Overseas suppliers of imported goods usually register and use trademarks in China, and trademark cancellation for three consecutive years of non-use (hereinafter referred to as “trademark non-use cancellation”) has become a frequent legal risk for such entities. Relevant response strategies merit in-depth discussion. Combining a typical administrative litigation case involving trademark cancellation review decision recently handled by our firm, this article focuses on analyzing two major practical difficulties: first, how to identify commodity contents when the Chinese translation in the Chinese Classification of Similar Goods and Services (hereafter referred to as “Chinese Classification”) is inconsistent with the English names under the Nice Classification; second, how to confirm genuine use of the trademark in question where import customs declarations and domestic sales invoices only record the Chinese transliteration of the trademark. The author elaborates based on case details, intending to provide practical references for trademark owners who operate imported goods to deal with trademark non-use cancellation cases.
The plaintiff in this case, the trademark registrant, is an Italian enterprise that registered a foreign-language trademark in China (hereinafter referred to as “the trademark at issue”). A third party subsequently filed a request for cancellation of the trademark. While the trademark was maintained for registration during the cancellation proceedings, it was decided to be cancelled upon cancellation review decision. In April 2026, the Beijing Intellectual Property Court rendered a first-instance judgment, revoking the cancellation review decision issued by the China National Intellectual Property Administration (hereinafter referred to as “the defendant”) and ordering the defendant to issue a new review decision concerning the trademark at issue. Neither the defendant nor the third party filed an appeal, and the first-instance judgment has now taken legal effect.
I. Determination of Commodity Contents Where Chinese Translations in the Classification of Similar Goods and Services Conflict with English Names under the Nice Classification
The trademark owner commercially produces and sells couscous, while the designated goods for the trademark at issue are “semolina steamed cakes”.
At the trademark application stage, the 2019 edition of the Chinese Classification listed “semolina steamed cakes” under Nice Classification code 300163, with the English name “couscous [semolina]”. The 2020 Nice Classification simplified the name of the commodity numbered 300163 to merely “Couscous”, and the 2020 Chinese Classification correspondingly revised its Chinese name to “couscous” under code 300163.
In cancellation review decision, the defendant held that couscous on which the trademark at issue actually used by the trademark owner was not the designated goods “semolina steamed cakes”.
Whether the actually used goods are same to the designated goods constitutes one of the core issues determining whether the trademark registration can be maintained. We argued before the court that the goods used by the owner are same to the designated goods of the trademark at issue, and the defendant’s finding was erroneous, for the following reasons:
1. Couscous is made from hard coarse semolina and features granular grains resembling rice. The designated goods “semolina steamed cakes” fall under Subclass 3007 (Instant Foods) of Class 30. The commodity involved in the case only requires five minutes of cooking, and product promotions label it as a “quick-cook staple ready after five minutes of soaking in hot water”, clearly placing it within instant foods. Comprehensive consideration of raw materials, form and consumption mode confirms that this commodity is same to the standard translated term "couscous" (Subclass 3007) corresponding to the designated goods.
2. The defendant disregarded the official revision of translated term in the Chinese Classification and judged commodity attributes solely based on the inaccurate translation in the 2019 edition, violating the applicable rule that Chinese and foreign commodity names corresponding to the same Nice Classification code inherently refer to the same commodity. The inaccurate translation in the 2019 Chinese Classification stemmed from phased issues in official compilation and was not attributable to the trademark owner. Imposing the adverse consequences of such inaccurate translation on the owner is clearly contrary to the principle of fairness.
Based on the above two points, we submitted in the litigation that, taking into account the original wording of the Nice Classification and Chinese Classification at the time of trademark filing, as well as the subsequent official revision of translated term, “semolina steamed cakes” (Code 300163) under the 2019 Chinese Classification and “couscous [semolina]” (Code 300163) under the Nice Classification should be recognized as the same commodity.
The first-instance judgment of the Beijing Intellectual Property Court supported our claim, confirming that the designated goods “semolina steamed cakes” of the trademark at issue and the couscous exported to China by the trademark owner are same goods.
In practice, to judge whether the old and new translated terms of goods, and whether Chinese and foreign goods names are identical, the core criteria shall be the Nice Classification code, raw materials, functions, purposes and consumption scenarios of the goods, rather than merely the Chinese translation of a single edition of the Chinese Classification. Adverse consequences arising from official inaccurate translation shall not be borne by trademark owners.
At the trademark application stage, the 2019 edition of the Chinese Classification listed “semolina steamed cakes” under Nice Classification code 300163, with the English name “couscous [semolina]”. The 2020 Nice Classification simplified the name of the commodity numbered 300163 to merely “Couscous”, and the 2020 Chinese Classification correspondingly revised its Chinese name to “couscous” under code 300163.
In cancellation review decision, the defendant held that couscous on which the trademark at issue actually used by the trademark owner was not the designated goods “semolina steamed cakes”.
Whether the actually used goods are same to the designated goods constitutes one of the core issues determining whether the trademark registration can be maintained. We argued before the court that the goods used by the owner are same to the designated goods of the trademark at issue, and the defendant’s finding was erroneous, for the following reasons:
1. Couscous is made from hard coarse semolina and features granular grains resembling rice. The designated goods “semolina steamed cakes” fall under Subclass 3007 (Instant Foods) of Class 30. The commodity involved in the case only requires five minutes of cooking, and product promotions label it as a “quick-cook staple ready after five minutes of soaking in hot water”, clearly placing it within instant foods. Comprehensive consideration of raw materials, form and consumption mode confirms that this commodity is same to the standard translated term "couscous" (Subclass 3007) corresponding to the designated goods.
2. The defendant disregarded the official revision of translated term in the Chinese Classification and judged commodity attributes solely based on the inaccurate translation in the 2019 edition, violating the applicable rule that Chinese and foreign commodity names corresponding to the same Nice Classification code inherently refer to the same commodity. The inaccurate translation in the 2019 Chinese Classification stemmed from phased issues in official compilation and was not attributable to the trademark owner. Imposing the adverse consequences of such inaccurate translation on the owner is clearly contrary to the principle of fairness.
Based on the above two points, we submitted in the litigation that, taking into account the original wording of the Nice Classification and Chinese Classification at the time of trademark filing, as well as the subsequent official revision of translated term, “semolina steamed cakes” (Code 300163) under the 2019 Chinese Classification and “couscous [semolina]” (Code 300163) under the Nice Classification should be recognized as the same commodity.
The first-instance judgment of the Beijing Intellectual Property Court supported our claim, confirming that the designated goods “semolina steamed cakes” of the trademark at issue and the couscous exported to China by the trademark owner are same goods.
In practice, to judge whether the old and new translated terms of goods, and whether Chinese and foreign goods names are identical, the core criteria shall be the Nice Classification code, raw materials, functions, purposes and consumption scenarios of the goods, rather than merely the Chinese translation of a single edition of the Chinese Classification. Adverse consequences arising from official inaccurate translation shall not be borne by trademark owners.
II. Absence of Trademark on Customs Declarations and Sales Invoices Does Not Equal Absence of Trademark Use; Genuine Trademark Use Shall Be Determined Based on a Comprehensive Chain of Evidence
During the review proceedings of this case, the trademark owner submitted multiple pieces of evidence to prove genuine domestic commercial use of the trademark at issue on couscous, including orders and invoices between the trademark owner and its Chinese distributors, import customs declarations, special import tariff payment vouchers, special import VAT payment vouchers, e-commerce platform sales pages and photos of product packaging.
However, the orders and invoices between the trademark owner and Chinese distributors are self-prepared documents without indicating the trademark at issue and without official seals of Chinese companies. Import customs declarations, tariff payment vouchers and VAT payment vouchers only record the Chinese transliteration corresponding to the trademark at issue. Since import customs formalities are mostly handled by domestic importers, it is common practice in import trade for such documents to only record Chinese transliterations, rather than a unique evidentiary flaw in this case.
During the review proceedings, the defendant examined each piece of evidence in isolation without considering their relevance and internal logical connections, and declined to recognize the trademark use reflected on e-commerce pages and product packaging. It ultimately ruled that the evidence on file failed to form a complete evidentiary chain and could not prove genuine use of the trademark at issue on the designated goods.
Upon entering litigation, to secure maintenance of the trademark registration, we guided the trademark owner to supplement additional evidence including special VAT invoices issued by domestic distributors to end customers, orders of the imported goods on JD.com, physical product photos and VAT invoice issued by the shop, further verifying the circulation of the goods within China. The aforementioned VAT invoices also only carried the Chinese transliteration, yet the physical product packaging clearly bore the trademark at issue.
During the first-instance hearing, we fully sorted out the logical thread of all evidence for the collegial panel, elaborated on the genuine trademark use on physical products, and pointed out the defendant’s error of examining evidence in isolation and ignoring actual trademark use. We presented physical products in court, clarifying that the trademark owner is the product manufacturer and has consistently affixed the trademark at issue on outer packaging.
We submitted to the court that imported goods circulating in the domestic market generally adopt foreign-language trademarks as primary brand identifiers. From the perspective of evidentiary nature, customs declarations, tariff and VAT payment vouchers are statutory documents for customs supervision and tax accounting, whose core function is to record commodity names, specifications, origins, cargo values and other customs clearance and tax-related information, without requiring detailed brand descriptions. It is therefore consistent with their functional positioning for such documents to only record Chinese transliterations, which cannot serve as grounds to negate trademark use.
The foreign-language trademark printed on product packaging constitutes the primary identifier for consumers; e-commerce pages displaying both Chinese and English brand names further corroborate this fact. Physical products, online sales materials and customs and tax documents together form a complete evidentiary chain sufficient to prove genuine use of the trademark at issue. When purchasing imported goods, consumers identify brands primarily through direct carriers such as product packaging and sales pages, rather than back-end regulatory documents including customs declarations. The defendant’s denial of trademark use merely on the grounds that the trademark at issue was absent from customs and tax documents constitutes one-sided interpretation of evidentiary weight and severance of internal logical links between evidence, violating the adjudication principle of basing rulings on facts.
After comprehensive examination of all evidence on file, the first-instance court held that the plaintiff holds only one valid registered trademark (the trademark at issue) covering the goods “semolina steamed cakes”, and materials including product packaging and e-commerce pages all display the foreign-language trademark at issue, adequately corroborating the plaintiff’s genuine intention to use the trademark at issue and a high likelihood of actual use. In summary, the evidence on file formed a complete evidentiary chain capable of proving that the plaintiff genuinely used the trademark at issue on the designated goods within the specified period.
In this case, the Beijing Intellectual Property Court did not demand flawless formalities for individual pieces of evidence. Instead, it returned to the legislative intent of the trademark non-use cancellation system, focusing on whether the trademark was genuinely put into commercial use. Thanks to our full sorting out of evidentiary logic, comprehensive oral arguments in court and complete presentation of case facts throughout the process, the case result was reversed. This outcome not only effectively safeguards the legitimate rights and interests of the trademark owner, but the handling strategies and judicial viewpoints of this case also provide valuable references for resolving similar disputes.
However, the orders and invoices between the trademark owner and Chinese distributors are self-prepared documents without indicating the trademark at issue and without official seals of Chinese companies. Import customs declarations, tariff payment vouchers and VAT payment vouchers only record the Chinese transliteration corresponding to the trademark at issue. Since import customs formalities are mostly handled by domestic importers, it is common practice in import trade for such documents to only record Chinese transliterations, rather than a unique evidentiary flaw in this case.
During the review proceedings, the defendant examined each piece of evidence in isolation without considering their relevance and internal logical connections, and declined to recognize the trademark use reflected on e-commerce pages and product packaging. It ultimately ruled that the evidence on file failed to form a complete evidentiary chain and could not prove genuine use of the trademark at issue on the designated goods.
Upon entering litigation, to secure maintenance of the trademark registration, we guided the trademark owner to supplement additional evidence including special VAT invoices issued by domestic distributors to end customers, orders of the imported goods on JD.com, physical product photos and VAT invoice issued by the shop, further verifying the circulation of the goods within China. The aforementioned VAT invoices also only carried the Chinese transliteration, yet the physical product packaging clearly bore the trademark at issue.
During the first-instance hearing, we fully sorted out the logical thread of all evidence for the collegial panel, elaborated on the genuine trademark use on physical products, and pointed out the defendant’s error of examining evidence in isolation and ignoring actual trademark use. We presented physical products in court, clarifying that the trademark owner is the product manufacturer and has consistently affixed the trademark at issue on outer packaging.
We submitted to the court that imported goods circulating in the domestic market generally adopt foreign-language trademarks as primary brand identifiers. From the perspective of evidentiary nature, customs declarations, tariff and VAT payment vouchers are statutory documents for customs supervision and tax accounting, whose core function is to record commodity names, specifications, origins, cargo values and other customs clearance and tax-related information, without requiring detailed brand descriptions. It is therefore consistent with their functional positioning for such documents to only record Chinese transliterations, which cannot serve as grounds to negate trademark use.
The foreign-language trademark printed on product packaging constitutes the primary identifier for consumers; e-commerce pages displaying both Chinese and English brand names further corroborate this fact. Physical products, online sales materials and customs and tax documents together form a complete evidentiary chain sufficient to prove genuine use of the trademark at issue. When purchasing imported goods, consumers identify brands primarily through direct carriers such as product packaging and sales pages, rather than back-end regulatory documents including customs declarations. The defendant’s denial of trademark use merely on the grounds that the trademark at issue was absent from customs and tax documents constitutes one-sided interpretation of evidentiary weight and severance of internal logical links between evidence, violating the adjudication principle of basing rulings on facts.
After comprehensive examination of all evidence on file, the first-instance court held that the plaintiff holds only one valid registered trademark (the trademark at issue) covering the goods “semolina steamed cakes”, and materials including product packaging and e-commerce pages all display the foreign-language trademark at issue, adequately corroborating the plaintiff’s genuine intention to use the trademark at issue and a high likelihood of actual use. In summary, the evidence on file formed a complete evidentiary chain capable of proving that the plaintiff genuinely used the trademark at issue on the designated goods within the specified period.
In this case, the Beijing Intellectual Property Court did not demand flawless formalities for individual pieces of evidence. Instead, it returned to the legislative intent of the trademark non-use cancellation system, focusing on whether the trademark was genuinely put into commercial use. Thanks to our full sorting out of evidentiary logic, comprehensive oral arguments in court and complete presentation of case facts throughout the process, the case result was reversed. This outcome not only effectively safeguards the legitimate rights and interests of the trademark owner, but the handling strategies and judicial viewpoints of this case also provide valuable references for resolving similar disputes.
III. Conclusions and Recommendations
In practice, many trademark owners have engaged in genuine use yet retain evidence with formal defects. In such circumstances, owners shall proactively supplement supporting evidence, sort out internal logical connections between documents, and make full use of all procedural stages to protect their legitimate rights and interests. Even where evidence contains formal deficiencies, sufficient reasoned arguments may secure recognition from trademark examination authorities. Meanwhile, trademark owners are advised to indicate actually used trademarks on transaction documents including customs declarations, invoices and contracts, properly preserve use evidence, and proactively mitigate risks of trademark cancellation.
Owners of foreign-language trademarks operating imported goods shall also standardize consistent use of their primary foreign trademark and corresponding Chinese transliteration, and retain supporting materials proving the correspondence between the two. When facing trademark non-use cancellation examinations with flawed evidence, owners may fully submit arguments combining industry practices, commodity attributes and Classification rules to guide trademark examination authorities to make holistic, objective findings on trademark use facts and reduce legal risks arising from evidentiary defects.
Owners of foreign-language trademarks operating imported goods shall also standardize consistent use of their primary foreign trademark and corresponding Chinese transliteration, and retain supporting materials proving the correspondence between the two. When facing trademark non-use cancellation examinations with flawed evidence, owners may fully submit arguments combining industry practices, commodity attributes and Classification rules to guide trademark examination authorities to make holistic, objective findings on trademark use facts and reduce legal risks arising from evidentiary defects.