If you run a brand in Canada, you eventually hear about challenges to trademark registrations. One of the key processes that comes up is Section 45 trademark proceedings in Canada. This process gives anyone with a legitimate interest the ability to question whether a trademark on the register is actually being used. The first surprise for many owners is how fast things move once the notice arrives, and how important it is to respond with proper evidence.
Why Section 45 Exists
Here is the thing, the trademark register is meant to stay accurate. If unused marks linger on it, they can block new applications and create confusion for businesses trying to launch a brand. Section 45 works like a maintenance check. It removes marks that have not been used for three years or more, unless the owner can show either actual use in Canada or special circumstances that excuse non use.
This keeps the register healthy and helps both new and established businesses operate with confidence.
Who Can Start the Process
Anyone who shows a real interest can request the Registrar to issue a Section 45 notice. Competitors do it when a registration seems abandoned. Applicants might do it when an old mark is blocking their filing. Even the Registrar can start it without a request.
What this really means is that trademark owners should not assume their registration is safe just because it is already granted. Use still matters.
What Happens When You Receive a Section 45 Notice
Once a Section 45 trademark proceedings in Canada notice lands in your inbox, the clock starts. The owner usually gets three months to file evidence. The timing can feel tight, especially for businesses with scattered records or older registrations.
You are expected to show evidence of use in the three year period before the notice. This could include packaging, invoices, advertising, website screenshots, shipping records, or anything that proves the mark was genuinely used in normal business. If the mark has never been used or has been paused for a long time, the owner can instead show special circumstances that explain the non use. That option is harder, so most people focus on real use evidence.
Understanding What Counts as Use
Use has a specific meaning in trademark law. For goods, the mark must appear on the goods, the packaging, or a label that goes with the goods at the time of sale or transfer. For services, the mark must appear in connection with the performance or advertising of the services. If your proof shows the mark on social media posts, contracts, product boxes, menus, brochures, or even on receipts, it can help.
Here is where many owners slip up. They think showing the logo somewhere online is enough. It is helpful, but the Registrar wants proof tied to real transactions or real service delivery. The more concrete your records, the better.
What Happens After You File Your Evidence
After the owner files their evidence, the requesting party gets an opportunity to file written arguments. Then the owner can respond with their own written arguments. Some cases never involve arguments because the requester chooses not to file them.
Once the written stages end, the Registrar reviews everything. They look for actual use during the relevant period or convincing special circumstances. If the proof is thin or inconsistent, the registration can be struck from the register.
Section 45 trademark proceedings in Canada are not meant to punish owners. They are meant to clean up the register. Still, losing a registration can hurt a business, especially if it has invested in branding or relies on the mark in competitive markets. That is why timely and organized evidence matters.
Common Mistakes That Hurt a Trademark Owner’s Case
Owners often wait too long to gather records. Some send marketing graphics without dates, or they rely on intent rather than actual use. Others confuse internal use, like placing the mark on internal documents, with public use, which does not count.
Another common error is assuming the Registrar will track down proof on its own. The responsibility sits entirely with the owner. If the evidence is not filed, the registration is at risk.
Sometimes the mark has changed over time. Small variations can be acceptable, but large changes can cause trouble. The Registrar needs to see that the mark used matches the mark registered, or that any differences do not change the mark’s distinctiveness.
Why Staying Prepared Makes the Process Easier
Businesses that regularly keep dated records of product packaging, sales, advertising campaigns, and service delivery rarely panic during a Section 45 challenge. They can pull up material quickly. Even better, they avoid the scramble of trying to reconstruct old activity.
Treat your trademark use like you treat your tax records. Store proof in an organized way. Save screenshots of your website and product listings each year. Hold onto catalogs, product photos, invoices, and shipping documents.
A Small Example of How This Plays Out
Imagine a small Toronto cafe that registered a mark years ago and then shifted focus. They still use the mark for seasonal products, but they never kept good records. When a challenger requests a Section 45 review, the cafe owner scrambles. After digging through old emails, they find only one dated photo of a product with the mark, plus a printed menu that happened to survive in a drawer. These two pieces might be enough, or they might not. A simple habit of saving annual screenshots or invoices would have saved a lot of stress.
The same applies to larger companies. Even with teams and structure, records can slip through the cracks. When the Section 45 trademark proceedings in Canada process begins, the owner’s ability to act fast often decides the outcome.
Where This Leaves You
If you ever receive a notice, treat it as a prompt rather than a crisis. Pull your records, check the timelines, and build a clear picture of use. A little preparation goes a long way, and the register rewards businesses that stay active and organized.