Expungement based on non-use
The technical term for this type of cancellation is ‘expungement’. It means removed or obliterated.
Read section 27(1)(b) of the Trade Marks Act.
The idea behind this is that a trade mark is something to be used — in trade, to mark your goods (or services). Registration effectively gives you a monopoly on the trade mark, and the monopoly will not be justified if you do not use the trade mark. So, to maintain your registered rights, not only must you renew the registration before it lapses, but you must also use the mark.
‘Use’ means that a brand name has been put into the commercial space. Let’s say you make perfume. You have developed a new, heavy fragrance which you think conjures up images of midnight romance and intrigue. You register the trade mark NOSEY DARKER. To defend an attack based on an allegation of non-use, you must in essence (no pun intended) show that perfume bearing the brand NOSEY DARKER has been on sale; or, at least, that you have advertised the perfume and that it is available for sale.
In short: trade marks are commercial tools. So, have you put the tool to use for commercial purposes?
If a continuous period of five years passes during which you have not used your trade mark, it is open to expungement (removal from the register) on the grounds of non-use. It is like this around the world, although in some countries the period is different. In South Africa, what happens before the date of grant of the registration does not count. In other words, you cannot start counting the five-year period to show non-use until the registration certificate has been issued. (This is one important difference between the date of the application and the date of grant that was referred to earlier.)
The sales and/or advertising must take place in a five year period ending three months before the expungement attack.