Grounds for cancellation of a trademark registration in Nicaragua for non-use

The Nicaraguan Trademark Law provides that a registration becomes vulnerable to cancellation for lack of use if the mark has not been used in commerce within three years of the registration date in Nicaragua. The cancellation may be partial if only some of the goods or services identified by the mark have not been used in commerce.

A mark is deemed to be in use, if the goods or services identified by the mark have been placed in commerce or are available under the mark, in the in the quantity and manner that normally corresponds to the size of the market, the nature of the goods or services concerned, and the arrangements under which they are placed on the market. A mark is also deemed to be in use if goods identified by the mark are exported from Nicaragua, or if services under the mark are provided abroad from Nicaragua. In addition, the use of a mark by a licensee or by another authorized person inures to the benefit of the trademark owner.

The action for cancellation due to non-use must be brought before a district court; however, when faced with an opposition or a refusal by the Trademark Office, an applicant can request the cancellation of the registration on the basis of lack of use as a defence. In both cases, the Trademark Office must submit the records of the proceedings to a district court.

When the use of the mark begins after three years from the date of registration, such use will only prevent the cancellation of the registration if it had started at least three months before the date that the cancellation proceedings were initiated.

The burden of proof lies on the trademark owner, who must show that mark has actually been is use.

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