In response to a trademark cancellation action for alleged non-use, Attorney Jia Runlian explains how to supplement the chain of evidence so that it holds up; evidence of use must form a complete timeline.

If a trademark is challenged for nonuse and faces cancellation, whether the defense can hold up depends not on how many invoices you have in hand, but on whether the evidence can be linked into an unbroken chronological chain. When the United States Patent and Trademark Office (USPTO) reviews a cancellation defense, it examines whether, at every point in time within the specified period, the trademark was genuinely used in commerce. If any segment is missing, the entire chain breaks. We generally advise clients not to rush to pile up materials, but first to map out the timeline, and then to fill in evidence at each point.

1. Revocation proceedings are not an ordinary objection; the burden of proof is on you.

Many clients encountering this for the first time think that if someone petitions to cancel, the other party has to prove that I did not use the mark. That is backwards. Under U.S. trademark law, a mark registered for five years can be cancelled by anyone on the ground of nonuse under 15 U.S.C. § 1064. Once the proceeding reaches the USPTO's Trademark Trial and Appeal Board (TTAB), the burden of proof falls on the registrant—you must submit evidence that, during the relevant period alleged by the opposing party, the mark was actually used on the goods or services specified in the registration. It is not enough to say I have been selling all along; you must show in which year and month, on what goods, and through what channels. In practice, this evidentiary standard is more granular than many people imagine.

II. First Clearly Delineate the Starting and Ending Points of the Time Chain

The first thing to do before filing an answer is to determine the relevant period. If the opposing party alleges three consecutive years of nonuse after registration, then the start and end dates of those three years are the interval your evidence must cover. The USPTO’s definition of use is set forth in 15 U.S.C. § 1127, and it requires bona fide use in the ordinary course of trade, not token use. The starting point of the timeline is usually the first day of the period alleged by the opposing party; the endpoint is the date the answer is filed. There can be no gaps in between. We have seen evidence produced by clients concentrated in a single year, with the preceding and following two years completely blank; such a chain will basically not hold up before the TTAB.

III. Sales evidence must be dated; screenshots do not count.

Sales records are the most direct evidence of use, but they must be original documents that show dates. Order screenshots and backend data exports will have reduced probative value if they lack a platform timestamp or a third-party verifiable date. Amazon and eBay sales reports are acceptable, but they must be traceable to specific ASINs and shipment dates. Orders from standalone websites are best supported by payment gateway records and tracking numbers. The amount is not the key; continuity is. Selling three orders a month, as long as there are orders every month, is more persuasive than selling a thousand orders in one month and then having a six-month gap. In practice, we generally advise clients to organize records quarterly and retain at least one set of verifiable sales records each quarter.

4. Advertising and promotional materials must be able to prove that they are aimed at the U.S. market.

Trademark use must occur in commerce within the United States, or, although abroad, directly affect the U.S. market. Facebook and Google Ads placement records may serve as corroborating evidence if they were targeted to the United States. But for a mere social media post, with no ad delivery data, no engagement records, and no proof of reach to U.S. users, the TTAB generally will not credit it on its own. For trade show materials, note that participation contracts for U.S.-based trade shows, booth photos, and brochures distributed on site carry more weight than English-language materials from overseas trade shows. The timing here must also align with the sales evidence; you cannot have advertising in 2023 while the sales records begin only in 2025.

V. Packaging, Labels, and Hang Tags: Do Not Ignore Physical Evidence

Product packaging, labels, and hangtags bearing the trademark, if they can show the production date or batch number, constitute very solid evidence of use. The USPTO accepts photographs of physical items, but the photographs must clearly show the trademark artwork, product name, and date information. Many cross-border e-commerce sellers habitually print the trademark on the side of the packaging box and photograph only the front, so the trademark does not appear in the photo. When organizing evidence, we generally recommend that clients specifically take a set of photos showing the “trademark + product + date” together in the same frame, with at least one set per SKU. If the product has an instruction manual or warranty card bearing the trademark and date, those can also be submitted together.

6. The response deadline is only three months; it can be extended, but it costs money.

In a TTAB cancellation proceeding, the deadline to answer is usually three months from the date of service. This deadline can be extended upon request, but each extension requires filing a motion with the TTAB and paying a fee, and it is not automatically granted. In practice, a motion for extension must state reasonable grounds, such as that foreign evidence is being collected or that notarization and authentication are required. We generally advise clients to establish the evidentiary framework within the first month after receiving notice, rather than waiting until the second month to start looking for invoices. If an extension is truly necessary, the first request is relatively likely to be granted, but repeated extensions will lead the TTAB to question the good faith of the defense. Where notarization and authentication of cross-border evidence are involved, the timeline must be moved up even further; the domestic notarization and authentication process in China takes two to three weeks even if expedited.

VII. What Fallback Options Remain When the Evidence Chain Cannot Be Completed?

If there has indeed been a gap in use during the relevant period, the risk of artificially supplementing the evidence is high. Options to consider at this point include negotiating with the opposing party to withdraw the cancellation application, proactively deleting some unused goods or services to narrow the scope of the dispute, or refiling a new application based on actual use. Deleting goods or services requires caution: deleting too much may affect existing business, while deleting too little will not satisfy the opposing party. Although refiling can secure a new registration, the filing date will be later, leaving you more vulnerable in the event of a conflict with prior rights. There is no standard answer to these choices; it depends on how important your trademark actually is to your business. If your strategy spans multiple jurisdictions such as the United States and the European Union, you should also consider whether it will affect priority claims in other countries, and you can consult on this as well.US and EU trademark and patent filing page.Team.

VIII. Beyond the Defense: How to Cultivate the Evidence Chain in Daily Practice

The best preparation for a defense is to develop the habit of preserving evidence in the ordinary course. We generally advise clients to file records quarterly: sales reports, screenshots of advertising, dated product photos, and logistics records, keeping one copy of each. It does not need to be complicated; a shared folder organized by year and quarter is sufficient. When many clients first encounter a cancellation, they search through emails and backend systems and find scattered evidence whose dates do not match, making it extremely difficult to fill in the gaps. If the business involves multiple countries, different jurisdictions have different requirements for evidence of use. The EUIPO’s standard for examining evidence of use differs from that of the USPTO, so you can learn in advance about the relevant requirements for intellectual property legal services in other countries. Spending an extra ten minutes a day on filing can save dozens of hours when preparing a defense.

Attorney Jia Runlian is with the foreign-related intellectual property team at Guangdong Zhiming Law Firm. She has long handled U.S. and EU trademark, patent, and copyright matters and has extensive practical experience in TTAB cancellation defenses and the organization of trademark use evidence. If you need advice on U.S. trademark cancellation defenses or evidence-chain reinforcement strategies, you are welcome to contact our firm at hotline 4008-363-555, or visit the attorney profile page to learn more about the team.

Disclaimer: This article is based on a general introduction to U.S. trademark law and related procedural rules and does not constitute legal advice for any specific case. The outcome of a trademark cancellation defense depends on the evidence and specific facts of each case. It is recommended that you consult a professional attorney before taking action.