Q. Could you confirm non-use cancellation period for National and Madrid Protocol type of trademark filing in South Korea?

A. Without justifiable grounds for the non-use (such as force majeure), a trademark registration will be cancelled through the trial if the registered mark has never been used during the prior three consecutive years before the date of filing the non-use cancellation trial.

This means a trademark registration should be at least three years old to be considered as the subject of a non-use cancellation trial. Hence, the Korean registration date is checked as a way to simply screen out whether a registration can be the subject of a non-use cancellation trial regardless of status of use. In case of Madrid Protocol type of filing for South Korea, the Korean registration date is usually same with the issuance date of the Statement of Granting registration.

While a trademark registration that is three years old can be the subject of a non-use cancellation trial as mentioned above, it would be more precise to say that start date for non-use period is dating back three years from the date of filing the cancellation trial.

Article 119 (Trial to Revoke Trademark Registration)(1) Where a registered trademark falls under any of the followings, a trial to revoke the trademark registration may be requested:

3. Where none of a trademark right holder, an exclusive licensee or a non-exclusive licensee has used the registered trademark on the designated goods in the Republic of Korea for at least three consecutive years without justifiable grounds before a trial to revoke the registered trademark is requested

(3) Where a trial to revoke trademark registration is requested on the grounds that the registered trademark falls under paragraph (1) 3, no trademark right holder may be exempted from the revocation of trademark registration for the designated goods related to such lawsuit unless the requested person proves that he or she has legitimately used the relevant registered trademark on at least one designated goods related to the trial to revoke trademark registration in the Republic of Korea within three years before the date the trial is requested: Provided, That the foregoing shall not apply where the requested person has proved justifiable grounds for using a registered trademark which he or she has not used.

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