The ground
A registration can be cancelled if neither the owner nor a licensee has used the registered mark in Korea on the registered goods or services, without a justifiable reason, for three consecutive years or more before the date the cancellation action is filed.
Who can file, and for which goods
Anyone can file a non-use cancellation action with the Intellectual Property Trial and Appeal Board; no interest has to be shown. The action can target all the registered goods or only some of them.
The owner must prove use
The registration is cancelled for the challenged goods unless the owner proves that the mark was genuinely used in Korea on at least one of those goods within the three years before the action was filed, or shows a justifiable reason for non-use. Starting to use the mark after the action is filed does not help.
What counts as use
- Putting the mark on goods or their packaging, and selling, delivering, displaying, exporting or importing them, including online.
- Supplying goods bearing the mark into Korea from abroad through a carrier or another party.
- Showing the mark in advertising, price lists or business documents for the goods.
Use by a licensee counts. Use outside Korea does not.
Effect
If the cancellation becomes final, the registration is treated as extinguished from the date the action was filed.
For foreign owners
- Keep dated evidence of use in Korea: invoices and shipping documents to Korean customers, Korean-language pages and advertising, and licence agreements.
- If an earlier, unused Korean registration blocks your application, a non-use action can clear the way. We can check use first and file the action and your application together.
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Questions
How long must a Korean trademark be unused before it can be cancelled?
Three consecutive years or more before the cancellation action is filed, without a justifiable reason.
Who can file a non-use cancellation action in Korea?
Anyone. No interest in the mark has to be shown.
Who has to prove use?
The trademark owner, by showing genuine use in Korea on at least one of the challenged goods within the three years before the action was filed.
Does use by a licensee or imports into Korea count?
Yes. Use by a licensee counts, and so does supplying marked goods into Korea from abroad through a carrier or another party. Use outside Korea does not.
Legal basis
- Trademark Act, Art. 119 — cancellation for three years of non-use (para. 1, item 3), partial cancellation (para. 2), burden of proof (para. 3), anyone may file (para. 5), effect (para. 6)
- Trademark Act, Art. 2 — definition of use of a trademark (para. 1, item 11)