Trademark cancellation for lack of use

The registration of a trademark not only grants rights, but also obligations.

Among these obligations are the correct use of it, the non-monopolization of the market to which the trademark is addressed, the use of the trademark in accordance with the basic rules of morality and good customs, and the non-involvement of third-party rights, among other obligations.

In this regard and in accordance with the use, the Law of Trademarks and Other Distinctive Signs (Law No. 7978) provides that with the non-use of a registered trademark, any person with legitimate interest could request its cancellation, claiming what is called non-use of the trademark.

To request the cancellation for lack of use it is not enough to have a legitimate interest, the applicant must also meet a number of requirements. These are:

1. That the trademark has not been used on the market within five (5) years, counted from the registration of the trademark.

2. That the trademark has not been marketed or promoted in the country within the indicated timeframe.

3. The use of the trademark after five years of its registration prevents its cancellation for non-use.

In the procedure of cancellation due to non-use, the burden of proof rests on the person requesting the cancellation. In other words, the applicant must demonstrate that the trademark has not been used on the market during the period mentioned before and therefore demonstrate that the cancellation proceeds. However, the owner of trademark may claim that the non-use was due to the exceptions provided for it in the law, for example, when the non-use is due to import restrictions, official requirements, or governmental restrictions, among other cases, in which the cancellation by non-use will not proceed because it was due to external factors beyond the control of the trademark owner.

Cancellation for non-use may also be requested as a defense against the objection, opposition, or invalidity declaration of the trademark.

It is therefore an effective procedure for the defense of trademark rights, as well as a legal way of forcing trademark owners to make effective use of trademarks for the benefit of the consumers.

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