Korean Trademark Non-use Cancellation: 3-Year Rule Explained

A trademark registration isn't a perpetual right by itself. After three years of non-use, anyone can file a non-use cancellation under Trademark Act Article 119(1)(3) and have the registration revoked. The mechanism prevents "registered-but-shelved" marks from blocking new entrants — but for owners, it means a competitor can wipe out your right by filing a single petition. Holding a Korean trademark requires active use plus retained evidence of use, not just keeping the registration alive.

What non-use cancellation is

Per KIPO's guidance, non-use cancellation lies when "none of the trademark holder, exclusive licensee, or non-exclusive licensee has used the registered mark for the designated goods continuously for three years before the filing date of the cancellation petition, without justifiable reason." Anyone can file — competitors are the most common petitioners.

If the petition succeeds, the registration's effect is retroactively voided to the petition date, leaving the field open for someone else to register the same or a similar mark. If a registration is sitting on a name you want to use, non-use cancellation is the most direct way to clear it.

Burden of proof — owner shows three years of use

Unlike ordinary civil litigation, the burden of proof rests on the trademark owner in a non-use cancellation. The petitioner only has to assert that the mark hasn't appeared in commerce; if the owner can't show actual use, the petition is granted. This burden shift is what makes the procedure so effective.

"Justifiable reason" defense

Three years of non-use can survive cancellation if there's a justifiable reason. Recognized examples: natural disasters, war, government restrictions on use, regulatory approval delays — external, uncontrollable factors. Mere business slowdown, market-entry delay, or funding shortages don't qualify. The standard is "was use externally / forcibly impossible," not "why didn't you use it."

Evidence to retain

• Receipts and tax invoices: ideally showing the mark, product, customer, and date together — the strongest evidence
• Product photos: actual goods bearing the mark (labels, packaging)
• Advertising materials: captures, broadcast logs of TV/radio/online ads
• Catalogs and brochures: print materials with both goods and mark, dated
• Website snapshots: Wayback Machine captures with verifiable dates
• SNS posts: dated and showing a commercial connection

Multiple goods — partial-use effect

When one registration covers multiple designated goods, a petition against all of them fails as a whole if the owner shows use of any one. So owners can save the registration by partial use. But petitioners often target only specific goods, and only those goods need to be defended; goods without proof get struck from the registration.

Procedure and cost

Non-use cancellation is an inter partes trial at the Patent Trial and Appeal Board, typically running 6-12 months. The official filing fee is around KRW 70,000 per class, plus attorney fees for the response and the trial. Owners file an answer with evidence, the Board issues a decision, and either side can appeal to the Patent Court and then the Supreme Court.

Owner playbook — five steady-state habits

1. Annual evidence collection: receipts, ads, SNS captures collected into a "mark use" folder
2. Use licenses: if direct use is hard, grant a non-exclusive license to a related entity — licensee use counts
3. Consistent appearance: use the mark within the registered form's identity range — over-modification can be treated as non-use
4. Goods audit: periodically check which designated goods are actually in use; consider trimming the rest
5. Use reminder: set a 30-month milestone alert — gives time to act before the 3-year cliff

Frequently asked questions

Can I refile after a cancellation?

Refiling is possible in principle, but during the gap between disuse and refiling, others may have filed identical or similar marks. Your refiling can then be refused for conflict with prior registrations. Realistically, recovery is hard once cancellation lands — start using before the 3-year mark.

Does foreign use count as Korean use?

No. Korean law requires domestic use. Use only in the US or Japan, with no Korean sales or advertising, qualifies as non-use. Export-only (no Korean sales) is the same. Even global brands that register in Korea but delay market entry past five years face real cancellation risk.

Does modified use still count?

Modifications within the registered mark's identity range count — minor font/color changes, slight ratio tweaks of figures. But changes that swap key distinguishing features or add new graphics turn the use into "a different mark," leaving the registered mark unused. Run rebrands by your attorney before launch to confirm identity-range.