Trademarks: Use It Or Lose It – And Prove It!

You may be surprised to learn that even after your trade-mark is registered, it can be expunged from the Trade-marks Register. One way is through Section 45 of the Trade-marks Act ("Act"). Section 45 of the Act authorizes expungement of trademarks that have not been used in the preceding three years on the goods or services for which the mark is registered.

Any person can initiate a Section 45 challenge. A registered owner faced with a Section 45 proceeding must furnish evidence of use of the trade-mark in the previous three year period for each of the goods and services listed in the registration.

The question becomes: How much and what kind of evidence of use of the trade-mark is necessary to defeat a Section 45 challenge?