For "Use Abroad", Read "Use Abroad Prior To Filing"

The recent case of The Thymes, LLC v. Reitmans (Canada) Limited 2013 FC 127 is the first decision at Federal Court level to uphold a ground of opposition based on section 30(d) of the Trade-marks Act, for failure to use the applied-for mark in a foreign country prior to filing an application in Canada, where the Canadian application relies on use and registration abroad as a basis for registration.

The decision confirms the long standing view among many trade-mark practitioners in Canada that use of the mark applied for must have taken place in another country of the Union prior to filing a Canadian application based on use and registration of that mark abroad. Maintaining the kind of sensible planning that many applicants have previously adopted will help to lessen any impact of the Court's decision, which now leaves no place to hide for applicants that file based on insufficient dates of use who are subsequently faced with a s.30(d) opposition.