What Evidence Of Use Is Required In A Section 45 Proceeding?

A recent decision by the Trademarks Opposition Board (the “Board”) sheds light on the nature of the evidence a trademark owner may rely upon when the Registrar issues a notice under section 45 of the Trademarks Act.

Section 45 allows anyone to request that a trademark registration be removed (i.e., expunged) from the Register of Trademarks on the grounds that it has not been used in Canada in association with the goods or services specified in the registration at any time during the preceding three-year period. When a section 45 notice is issued, the trademark owner has three months to provide evidence of use in the form of an affidavit or statutory declaration. In the absence of use, to avoid expungement, the owner may provide evidence that the non-use was due to “special circumstances.”