Section 45 Proceedings
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Responding to a Section 45 Notice
The owner of a trade-mark registration (or its representative for service) will receive a Section 45 Notice directly from the Registrar, indicating a three-month deadline for responding thereto.
If a registrant does not already have a trade-mark agent, it is strongly recommended to hire one at this point. Section 45 proceedings may be complex and can cost considerable time and money. A trade-mark agent should be chosen carefully; choose someone with proven expertise in this field. A list of trade-mark agents is available online or by contacting the Client Service Centre.
A registrant, or preferably its trade-mark agent, should take one of the following actions within the three-month time period, failing which its registration may be expunged:
- File one or more affidavits or statutory declarations and send a copy to the requesting party; or
- Request an extension of time for the filing of evidence and pay the prescribed fee; the request must:
- identify the trade-mark registration by number and trade-mark;
- provide sufficient reasons to explain why the extension of time is required;
- indicate the method by which the prescribed fee (see Payment of prescribed fees)
- cc. the requesting party.
Form of evidence to file
See Evidence in Practice in Section 45 Proceedings.
Note the following:
- Evidence must be filed in the form of affidavits or statutory declarations;
- Evidence cannot be filed by fax;
- Evidence is not subject to cross-examination.
The exact nature of the evidence to be filed depends on the individual case. A registered trade-mark agent can assist you in determining what evidence is needed in order to put your best case forward.
The evidence must be filed with the TMOB and a copy sent to the requesting party within the set deadline.