If you have a significant amount of time without using or just barely using your registered trademark and “out of nowhere” comes a non-use trademark cancellation request, you always have the possibility of defending your trademark. Nevertheless, non-use trademark cancellation request may also be presented if you have filed against the registration of other trademark or have initiated a trademark infringement action.
To organize your defense you must know that a non-use trademark cancellation request is only admissible if the trademark has been registered for more than three (3) years.
Since it is a non-use trademark cancellation request, to defend yourself you need to demonstrate that: (1) you are using the trademark; or (2) you are about to use the trademark; (3) you have not been able to use the trademark for reasons beyond your own control.
- To prove trademark use, any lawful evidence that shows the following actions is admissible:
- Availability of the products and/or services with the registered trademark in the national marketplace
- Arrangement of the products for export and/or rendering services to customers located in other countries from national soil.
- To evidence that you were about to use the registered trademark, you must present tangible acts that show imminent use.
- Finally, the justifications of non-use are only admitted for events or circumstances beyond your control that could not have been avoided or remedied. However, economic or technical justifications are not accepted.
Any evidence of trademark use has the value of an official declaration, and the trademark owner is responsible of its authenticity.