2025 marked a year of adaptive reform in Canadian trademark law. Decisions, legislative updates, CIPO initiatives, and procedural enhancements collectively show the system continuing to mature in the wake of the 2019 overhaul. After the 2014 amendments to the Trademarks Act (the “Act”) set the stage for removing use requirements, practitioners anticipated difficulties—tougher clearance, a cluttered register, heavier reliance on opposition and expungement, and challenges tied to international alignment. Now, seven years after implementation, the effects of those reforms are becoming clear.
Aimed at improving efficiency, curbing abuse, and preserving the integrity of the register, the developments of 2025 reflect a shift toward a more practical, evidence‑oriented, and commercially grounded regime. These changes arrive as brand owners navigate post‑pandemic pressures, cross‑border trade constraints, rapid AI adoption, and an increasingly complex digital marketplace. Against this backdrop, Canada’s trademark framework continues to adapt to contemporary market realities, further strengthening its position as a trusted jurisdiction for rights holders worldwide.
Table of contents
- Legislative amendments (effective April 1, 2025)
- CIPO’s procedural enhancements and new powers of the Registrar
- The 2025 evolution of Bad Faith in Canadian trademark practice
- Special circumstances excusing non-use
1. Legislative amendments (effective April 1, 2025)
Long awaited amendments to the Act and Trademarks Regulations came into force on April 1, 2025 – the last of the amendments to come into force stemming from Bill C-86 (Budget Implementation Act, 2018, No. 2).
Introducing the proof-of-use requirement for remedies (s. 53.2)
As of April 1, 2025 subsection 53.2(1.1) of the Act requires owners holding trademark registrations that are less than three years old to demonstrate “use in Canada” or “special circumstances” excusing non-use before federal and provincial Courts will award relief for acts that contravene their rights under section 19, 20, or 22 of the Act. The provision prevents unscrupulous “rightsholders” from obtaining relief based on registrations of marks that they have not in fact used and perhaps have no intention of using – a concern that has grown since Canada abolished the use requirement for registration in 2019.
Leave requirement for new evidence on appeal (s. 56(5))
Parties must now obtain leave from the Federal Court to introduce new evidence on appeal from a Trademarks Opposition Board (“Board”) decision. Prior to April 1, 2025, parties were allowed to file new evidence on appeal as of right. This change aims to encourage parties to present their best case at the Board level, seeks to discourage parties from taking a “second kick at the can”, creates efficiencies, and underscores the value of working with experienced counsel from the get-go.
Challenges to official marks (s. 9(3) and s. 9(4))
Official marks have historically been difficult to challenge or invalidate – until now. Under the new subsections 9(3) and (4), individuals can apply, or the Registrar may act on its own initiative, to revoke official mark status where its holder is no longer a public authority or no longer exists. Removing these obsolete barriers to registration helps ensure that the register reflects current rights.
2. CIPO’s procedural enhancements and new powers of the Registrar
Wait times for examination hit a five-year low
2025 was a pivotal year in which CIPO made substantial progress in managing and successfully reducing its inventory of trademark applications awaiting examination by 42% and bringing wait times for examination down to 7.8 months (a vast improvement over the wait times at the height of the backlog – 1,700 days or nearly 5 years).
With the backlog under control, CIPO used its unlocked capacity to implement a series of procedural enhancements that also appear to be aimed at addressing some of the impacts of the 2019 changes to the Act.
Registrar-initiated Section 45 non-use pilot
In January 2025, CIPO launched a pilot project to help rid the register of aged trademarks that are no longer in use, through Registrar-initiated non-use cancellation proceedings, pursuant to section 45 of the Act. The Registrar issued approximately 200 pilot project notices to brand owners, calling for evidence of use to maintain their aged trademark registrations. Of the 100 section 45 notices issued in January, 54 registrations were expunged due to failure to respond, 36 registrations were maintained, and 10 proceedings were discontinued since the evidence filed clearly indicated that the registered trademarks were still in use. In both June and July, the Registrar issued 50 additional notices, though CIPO has yet to publish data on those cases. Once a statistically significant number of proceedings have concluded, the Board will organize public consultations related to the pilot project. For more information on CIPO’s pilot project, please see our article, “Is your trademark in use? CIPO targets “deadwood” in 2025 and what you should expect.”
Cost awards in exceptional cases
The Registrar may now award costs in opposition and cancellation proceedings where bad faith, unreasonable conduct, or other specified circumstances exist. Awards are fixed by regulation and capped at a multiple of the prescribed fee for commencing the proceeding. Although their amounts are modest, these awards deter abusive tactics and promote procedural discipline.
Confidentiality orders
In 2025, the Registrar introduced a procedural safeguard allowing parties to request confidentiality for evidence filed with the Board, provided the request is made in advance and identifies the confidential material, confirms that it has not been made public, explains the need for confidentiality, and indicates whether the other party consents. Designed to encourage complete disclosure without exposing sensitive commercial information to the public record—a longstanding concern in opposition and cancellation proceedings—this measure is a notable development as more global brand owners participate in Canadian and multi‑national opposition and cancellation proceedings following Canada’s 2019 alignment with international practice.
Case management
The Registrar may now designate proceedings as case-managed in situations such as divisional applications opposed on similar grounds, Protocol applications with substantive changes, or proceedings involving confidentiality orders. Case management allows the Registrar to override statutory timelines, consolidate filings, assign a consistent panel member, and issue interim directions. This added flexibility streamlines complex disputes, ensures consistency, and reduces unnecessary delays, strengthening confidence in Canada’s trademark system for both domestic and international brand owners.
AI disclosure requirement
Any document filed with the Board that includes AI-generated content must now contain a declaration confirming AI use and verification by the party or agent. This rule applies to generative AI drafting or research but excludes dictation or editing tools. Failure to disclose or providing false statements may be treated as unreasonable conduct and lead to cost consequences. By aligning with Federal Court guidance, this requirement promotes transparency, accountability, and human oversight in a time of rapid AI adoption—key principles that maintain trust and integrity in Canadian proceedings.
3. The 2025 evolution of Bad Faith in Canadian trademark practice
Since 2019, persons in Canada may oppose the registration of a trademark, and seek to invalidate an existing registration, on the basis that the initial application was filed in bad faith. Since then, the Board has expanded its jurisprudence on bad faith with the courts considering such matters on appeal and in the context of expungement proceedings. The most notable bad-faith decisions of 2025 illustrate the unsettled margins of this still evolving area of Canadian trademark law while also providing additional guidance on this important ground.
In Snap Inc v Ghostface Chillah Inc, 2025 TMOB 252, the Board found a striking pattern of bad-faith behaviour, including the Applicant’s using SNAPCHAT-formative domain names to sell infringing merchandise, marketing such merchandise as “official”, and harassing and threatening the Opponent and its CEO with extortionate demands. Despite several takedowns and warnings, the Applicant continued to advertise, offer for sale and sell infringing merchandise bearing the Opponent’s own marks. The Board characterized such conduct as trademark squatting, attempted extortion, and wilful infringement. The decision presents an extraordinarily dense and well-documented pattern of misconduct on the part of the Applicant, making it a textbook example of bad faith. That said, questions remain as to which of the Applicant’s behaviours alone would constitute bad faith.
In FrieslandCampina Nederland B.V. v Cong Ty Co Phan Sua Vietnam, 2025 TMOB 134, FrieslandCampina Nederland B.V. opposed Vinamilk’s application for VM VINAMILK ÔNG THỌ and Design, which was filed following two earlier applications in which Vinamilk provided two different translations of the same Vietnamese term—first stating that “Ông Thọ” meant “Longevity”, then later stating that it meant “Mr. Tho” when the original translation attracted confusion objections. This discrepancy, and the Applicant’s providing a completely different translation only after the Examiner raised substantive objections, led the Board to infer an intentional attempt to obtain a registration advantage, making the case a clear example of bad‑faith filing. The decision simultaneously imparts a different but equally important lesson about thoughtful drafting and evidentiary discipline: the mental state of the applicant is a central consideration, and once an opponent raises credible concerns based on the applicant’s actions, the applicant bears the burden of explaining why such action was not taken in bad faith, on a balance of probabilities.
Donna Francine Hunt, Administrator of the Estate of Angela Dawn Hunt v Carol Anne Hilton, 2025 TMOB 166 confirms that narrative alone is no substitute for actual proof of intention when alleging bad faith in an opposition proceeding. Unlike other bad‑faith cases involving deception, squatting, misleading filings, or abusive tactics, this case arose from a personal dispute between former partners over who coined the term INDIGENOMICS. The record showed that the Applicant had long used the mark independently—teaching courses, publishing a book, and offering services in association with the mark—while the Opponent could not establish prior use or any manipulative conduct on the part of the Applicant. The bad faith ground in this case was dismissed.
In fxswede AB v Xu, 2025 FC 1864, the Federal Court also weighed in on allegations of bad faith in the context of an expungement action, emphasizing that bad faith must be grounded in clear, persuasive evidence rather than conjecture or dissatisfaction with a party’s commercial choices. The Court reaffirmed that bad faith remains an exceptional finding and clarified that even questionable market behaviour will not meet the threshold of bad faith absent proof of a deliberate intent to undermine the integrity of the trademark system. This decision demonstrates that the bad‑faith analysis continues to mature along principled, evidence‑based lines.
Together with the Board decisions, 2025 FC 1864 contributes to a maturing jurisprudence in the seventh year post‑implementation, where assessments of bad faith appear increasingly grounded in whether the evidentiary record supports a departure from honest commercial dealing. Stay tuned for our comments on lessons about bad evidence from certain section 45 decisions of 2025.
4. Special circumstances excusing non-use
In 2025, there were notable decisions concerning the interpretation of special circumstances that may excuse an absence of use in cancellation proceedings under section 45 of the Act. Decisions from both the Federal Court of Appeal and the Board clarified the limits of this concept, particularly in the context of recent trademark acquisitions.
Federal Court of Appeal guidance: recent acquisitions as potential special circumstances
The Centric Brands Holding LLC v Stikeman Elliott LLP, 2025 FCA 161 decision confirms the validity of the “New Owner Jurisprudence”, whereby the recent acquisition of a trademark may give rise to special circumstances that may excuse the absence of use in cancellation proceedings.
This case arose from a section 45 proceeding against the trademark AVIREX, which was registered in association with clothing. The Registrar issued a section 45 notice on October 12, 2018. Only three months prior, on June 27, 2018, Centric had entered into a purchase and sale agreement (the “PSA”) to acquire the trademark AVIREX. However, the transaction did not formally close until October 29, 2018 (only 17 days after the section 45 notice issued).
Centric was unable to produce invoices evidencing use of the trademark predating the execution of the PSA. Instead, it relied on the recent acquisition, and the New Owner Jurisprudence, as a basis for special circumstances excusing non-use.
The Registrar rejected this argument and ordered expungement, a decision that was upheld by the Federal Court. The Federal Court concluded that the New Owner Jurisprudence did not apply since Centric became the new owner after the section 45 notice was issued.
The Federal Court of Appeal overturned the decision, finding that the Federal Court erred by focusing rigidly on the closing date rather than the PSA executed during the relevant period. The Federal Court of Appeal confirmed that such acquisitions may constitute special circumstances excusing non-use if they are genuine, arms-length transactions. The Court emphasized that while section 45 is designed to clear deadwood from the register, it must also allow flexibility for legitimate commercial dealings and held that the Federal Court had erred in requiring the acquisition to be fully closed before the section 45 notice was issued in order for the New Owner Jurisprudence to apply. In setting aside the cancellation of the registration, the Court of Appeal noted that a stricter interpretation would be unduly harsh and could invite mischief, such as opportunistic section 45 requests timed to exploit closing delays.
Board comments on limits of New Owner Jurisprudence
The Board has consistently emphasized that special circumstances excusing non‑use must be unusual, uncommon, or exceptional, and supported by clear, specific evidence. SmartSweets Inc v Société des Produits Nestlé S.A., 2025 TMOB 205 illustrates an important limit of the New Owner Jurisprudence: a recent acquisition, on its own, is not a “special circumstance”.
SmartSweets challenged the SEATTLE’S BEST COFFEE design mark, which Nestlé acquired during the relevant three‑year period. Although Nestlé proved use for some coffee‑related goods and services, it provided little evidence for the remainder and argued that its short ownership window—and the scale of its operations—justified non‑use. The Board rejected this position, noting that while an acquisition may be relevant, it is not determinative; Nestlé offered no meaningful evidence about the transaction, constraints affecting use, or plans to resume use. The Board also observed that Nestlé had quickly begun using the mark in association with some goods, suggesting business prioritization rather than unavoidable barriers.
While section 45 allows flexibility in genuinely exceptional cases, both the courts and the Board require cogent, fact‑specific proof. Recent acquisitions may justify temporary non‑use only where the evidence shows that use was truly unavoidable and the registrant intended in good faith to resume use in the ordinary course of trade.
Global pandemic pressures: when they excuse non‑use—and when they don’t
The 2025 Board decisions addressing pandemic‑based explanations for non‑use reflect the system’s continued shift toward evidence‑driven, commercially grounded reasoning: COVID‑19 disruptions were not treated as “special circumstances” unless the record showed truly unavoidable conditions and a genuine intention to resume use. Across these cases, the Board viewed COVID‑19 impacts, shifting product priorities, store closures, and broader market volatility as business choices rather than exceptional circumstances—particularly where alternative channels remained available or no concrete plan to recommence use was shown. Although section 45 remains flexible in genuinely exceptional scenarios, owners must increasingly demonstrate how specific disruptions directly and unavoidably prevented use, and what steps were taken to overcome those barriers. See e.g. Regeena Lifeso v Toys “R” Us (Canada) Ltd, 2025 TMOB 12; Shift Law Professional Corporation v Joanna Habbous, 2025 TMOB 197; Partnership Mohammid Simon & Kenniesha Simon (Killa Garments) v Kurt Geiger Limited, 2025 TMOB 3; Borden Ladner Gervais LLP v JAWHP, LLC, 2025 TMOB 4; Trademark Building Products Ltd v Window World International, LLC, 2025 TMOB 63; USConnect, LLC v Lodestar Anstalt, 2025 TMOB 77, and Persia Food Products Inc v ARA Trading Ltd, 2025 TMOB 142.
The 2025 decisions may offer a useful lens for considering how rights holders document use and navigate operational choices in a world increasingly shaped by trade‑related barriers. As the number of section 45 proceedings grows—particularly for marks filed without prior use—these cases raise interesting questions about how owners might preserve their rights amid geopolitical pressures that continue to influence supply chains and commercial access.
Stay tuned
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Acknowledgements:
We wish to acknowledge and thank Alfred Macchione, Mark Robbins, Kwan T. Loh, Graham Hood, Tamara Winegust and Reagan Seidler for considering this year’s cases and practice updates with us, and to extend a special thanks to Smart and Biggar’s 2025 Toronto Articling students for assisting in the review of all the cases considered for inclusion in this year’s article and webinar – this project would have been impossible without their assistance.