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If an unused registered trademark is standing in the way of your own brand, our team at Brealant can pursue a Section 45 cancellation action with CIPO — or defend your registration if someone challenges yours.
Legal Definition of Trademark Cancellation
Cancellation, most commonly a Section 45 summary non-use proceeding under the Trademarks Act, is a process for removing a registered mark from the Register.
Purpose and Function of Cancellation
It's most commonly used where a mark hasn't been used in Canada during the 3 years before the proceeding is requested, clearing the way for new applications.
Protecting Your Interests
Whether removing a blocking mark or defending your own registration, evidence of use — or its absence — is central to the outcome.
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Contact
Reach out to Brealant about the blocking registration, or the challenge to your own mark.
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Search
We review the target registration's use history and eligibility for a Section 45 action.
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Quote
Receive a staged service quote covering each phase of the action.
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Pay
Proceed with secure payment for the stage you're instructing us on.
File
Brealant requests the Section 45 notice, or prepares the response, through CIPO.
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Wait
CIPO issues the notice and manages the evidence process for the registered owner.
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Response
You receive CIPO's decision on whether the mark is removed, maintained, or amended.
In Canada, a Section 45 proceeding begins with a request to CIPO's Registrar, who then issues a notice requiring the registered owner to show use of the mark during the relevant 3-year period, or explain its absence. Understanding the target mark's use history is the clearest way to assess your prospects.
A blocking registration that's genuinely fallen out of use can prevent you from registering, or fully protecting, your own brand. Brealant assesses the target mark's use history carefully before recommending action, so you understand the real prospects of success.
Cancellation is a useful tool, but it has real limits
Minimum Registration Age
A Section 45 notice generally cannot issue until the target registration is at least 3 years old.
Low Evidentiary Bar for Owners
The registered owner only needs to show a prima facie case of use — a relatively modest threshold to meet.
Summary Procedure Only
Section 45 is a summary process focused narrowly on use; it isn't the venue to resolve broader validity or ownership disputes.
Time and Cost
A contested proceeding, including any appeal to the Federal Court, can take well over a year.
Partial Removal Only
The mark may be removed only for some goods or services, not necessarily all of them.
Brealant gives you a realistic view of the likely timeline, cost, and prospects before you proceed.
A successful cancellation action protects
Your Path to Registration
Clearing the way for your own application in the same or overlapping classes.
Market Fairness
Removing marks that are no longer genuinely used but still block legitimate new entrants.
Register Accuracy
Keeping the CIPO register reflective of marks that are actually in commercial use in Canada.
Your Investment
Protecting your brand strategy from being derailed by a stale, unused registration.
Brealant assesses whether a Section 45 action is the right route before you commit resources to it.
Cancellation timing depends on how the registered owner responds
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Requesting the Notice
Brealant requests that CIPO's Registrar issue a Section 45 notice against the target registration.
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Notice to the Owner
CIPO issues the notice, giving the registered owner 3 months to file evidence of use.
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Evidence and Submissions
The requesting party and owner may file written submissions responding to the evidence filed.
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Decision
CIPO's Registrar decides whether the mark is maintained, amended, or expunged, in full or in part.
An uncontested or straightforward Section 45 proceeding can resolve within about a year; a case that's appealed to the Federal Court will take considerably longer.
Costs scale with whether the matter is straightforward or contested
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CIPO charges an official fee to request a Section 45 non-use notice.
Professional fees scale with the volume of evidence filed and whether the matter proceeds to submissions or appeal.
Brealant will assess your matter and quote before filing, so you know what to expect.
Once a blocking mark is removed, Brealant can move straight into clearing and filing your own application, so the opportunity created by the cancellation isn't lost to a competing filer.
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A Section 45 notice generally can't be requested until the registration is at least 3 years old, and it tests use during the 3 years immediately before the notice is issued.
Once a Section 45 notice issues, the registered owner carries the burden of showing use, or explaining special circumstances excusing non-use.
Yes, marks can also be challenged through an invalidity action before the Federal Court, on grounds such as prior confusion or improper registration.
The mark is expunged from the register for the relevant goods/services, clearing the way for new applications covering that same ground.
Yes, the owner can file evidence of use, and CIPO's Registrar (or the Federal Court on appeal) will decide whether that evidence is sufficient.
Any person can request one, often for a modest government fee, without needing to show a personal interest in the mark being removed.
CIPO charges a modest government fee to request the notice, with Brealant's professional fees quoted separately depending on whether the matter proceeds to a contested hearing.
An uncontested or straightforward case can conclude within about a year, while cases with extensive evidence or a Federal Court appeal take considerably longer.
Circumstances genuinely outside the owner's control, such as a temporary market disruption, may excuse non-use, but a simple business decision not to use the mark generally will not.
Yes, cancellation can be partial, removing only the goods or services for which use wasn't shown, while the registration survives for the goods or services proven in use.
Discover more insights and stay informed about the latest in intellectual property with Brealant's blog. From expert advice on trademark registration and patent protection to strategies for safeguarding your brand in a competitive market, our resources are here to empower your business. .
Explore our blog to learn how effective IP management can strengthen your brand's position and protect your innovations
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