If your trademark application is being blocked by a registered trademark in Canada, there may be a solution—especially if that trademark is not being used. Canada has a legal process called a Section 45 cancellation proceeding that allows you to challenge a registered trademark if it hasn’t been used within the last three years.

This process can help clear unused marks from the Canadian register and remove obstacles to your own trademark registration.

What Is a Section 45 Cancellation?

Under Canadian law, once a trademark has been registered for at least three years, anyone can ask the Canadian Intellectual Property Office (CIPO) to review whether that trademark is actually being used in Canada.

To do this, a request is made for CIPO to issue a Section 45 notice to the trademark owner. This notice requires the owner to prove that they have used their trademark in Canada within the past three years. If they fail to respond or can’t provide acceptable proof, their trademark will be expunged (cancelled).

This means the trademark will be removed from the register and will no longer prevent your application from moving forward.

When Can a Cancellation Be Requested?

You can only request a Section 45 notice once the trademark has been registered for at least three years. This is an important rule. If the trademark is newer than three years, you must wait until that time period has passed before cancellation can be considered.

Why Start a Cancellation Proceeding?

Let’s say your application is being blocked by a similar registered trademark, but after searching, you can’t find any signs that this mark is actually being used in Canada. In that case, you may be able to challenge it through cancellation proceedings.

This process gives the owner of the older mark a chance to prove that they’re using it in the Canadian marketplace. If they can’t—or don’t respond—the mark will be cancelled.

What Happens After the Notice Is Issued?

Once the Section 45 notice is sent, the trademark owner has three months to submit evidence showing how they’ve used their trademark in Canada over the past three years.

If they don’t respond at all, their trademark will be automatically cancelled.

If they do respond, the evidence will be reviewed to see whether it qualifies as genuine use under Canadian law. In some cases, additional arguments (called “written observations”) can be submitted to challenge the strength of the evidence.

What Counts as “Use” of a Trademark?

To keep a trademark active in Canada, the owner must use it in the regular course of business. Examples of valid use include:

• Selling goods in Canada that display the trademark on packaging or labels
• Offering services under the trademark to Canadian customers
• Advertising services directly to Canadians
• Distributing products from outside Canada to customers inside Canada

It’s not enough for a business to simply own a website or trademark—they must show clear, real-world commercial use in Canada. If the evidence shows only use in other countries or limited promotional activity, it may not be enough to keep the trademark registered.

What Happens to Your Application During This Time?

While cancellation proceedings are underway, your own trademark application will be placed on hold. In the meantime, we will request extensions of time from the Canadian Trademark Office to keep your application active.

Once the older, blocking trademark is cancelled, we can respond to the office action and ask for your trademark to be approved.

Key Takeaways

• In Canada, registered trademarks can be cancelled if they haven’t been used in the last 3 years.
• You can only request cancellation 3 years after the date of registration.
• If the trademark owner doesn’t respond—or fails to prove use—their mark will be removed from the register.
• This process helps clear unused trademarks that are blocking new applications.
• During the cancellation process, we’ll keep your application active by requesting time extensions.

If you believe a registered trademark is blocking your own and it doesn’t appear to be used in Canada, cancellation proceedings may be the best way forward.

Let us know if you’d like to move ahead or have any questions about the process—we’re here to help.