A Year After The Reform Of Trademark Law In Canada: How Are The Changes Playing Out And What Comes Next?

April 1, 2025, marked the coming into force of significant amendments to the Canadian trademark regime. Among those with the potential to be most impactful were:

• a new requirement to obtain leave from the Federal Court to introduce new evidence in appeals of opposition and cancellation decisions;

• the introduction of cost awards in opposition and cancellation proceedings;

• the availability of confidentiality orders before the Trademarks Opposition Board (TMOB); and

• a requirement to demonstrate use in order to obtain certain remedies in infringement actions commenced within the first three years following registration.

Bad Faith Grounds of Opposition: Popular but Closely Scrutinized

The possibility of an approximately CAD $11,000 cost award has encouraged many opponents to advance bad faith as a ground of opposition. This has resulted in a series of interlocutory motions to strike and several decisions clarifying the scope of bad faith in Canada.

Tribunals have consistently held that merely alleging the applicant knew or should have known of the opponent’s prior rights is insufficient. However, where such knowledge is paired with an intention to harm or disrupt the opponent’s business, tribunals may treat it as a relevant—though not determinative—factor.

More detailed allegations of schemes to exploit the opponent’s goodwill have been more successful at surviving interlocutory challenges. Similarly, claims that an applicant adopted a mark to artificially bolster credibility with consumers, or that it lacks any legitimate commercial purpose for seeking registration (i.e., squatting or trafficking), have been treated as fertile ground for bad faith. Pleadings alleging more intricate machinations to exploit the opponent’s goodwill have met with some success. Allegations of copying the style or font of an opponent’s mark have also helped sustain bad‑faith pleadings.

At the other end of the spectrum, clearly abusive conduct—such as attempting to resell a trademark application or the associated business opportunity at many times the filing cost—has been found to constitute bad faith. Filing a trademark application in breach of a contractual, fiduciary, or other legal obligation is also recognized as bad faith.

Although the filing date governs the assessment, Canadian tribunals accept post‑filing evidence that sheds light on the applicant’s intentions at or before that date.

Confidentiality Orders Before the TMOB: Granted, but Not Automatically

Parties may now seek confidentiality orders before the TMOB. These limit public access to the record but are distinct from protective orders governing disclosure between the parties themselves.

As of early 2026, fifteen confidentiality requests had been filed, and the TMOB granted seven of them. This reflects the Board’s stated position that confidentiality orders are exceptional and require a clear demonstration of necessity. Of note is that some requests were dismissed as moot because the evidence had already been filed in the public record.

The Federal Court Begins to Interpret the New Leave Requirement

Only in early 2026 did the first decisions emerge addressing the new requirement to obtain leave to file additional evidence on appeal of TMOB decisions—a step that was not required before April 1, 2025.

Two decisions to date acknowledge that, before confidentiality orders were available, parties may have refrained from filing sensitive evidence with the TMOB. This transitional context may support granting leave in appropriate cases.

The Federal Court has highlighted four key factors: relevance, admissibility, and credibility of the new evidence; materiality; reasons for not filing earlier; and prejudice to the opposing party. The door has been left open to consider other factors. The most hotly contested factor will likely be the reasons for not filing earlier. In a January 2026 decision, the Federal Court advocated for a somewhat flexible approach when considering such reasons.

Courts have not yet consistently determined whether leave applications should be heard on an interlocutory basis or at the appeal hearing itself.

Given this developing jurisprudence, parties should continue to build the strongest possible evidentiary record before the TMOB and seek confidentiality orders where appropriate.

Looking Ahead: Red Tape Review and Administrative Modernization

CIPO is preparing to roll out measures following its 2025 red tape review aimed at improving flexibility and efficiency.

The most significant upcoming change is the planned expansion of the expedited examination program. While expedited examination has historically required evidence of active infringement, new qualifying circumstances are expected. Once granted, it generally results in examination within 10 days—making it one of the fastest processes globally.

Additional initiatives include expanded authority for examiners to request amendments by telephone to accelerate prosecution and efforts to improve the quality of examiner reports.

Canada remains one of the strictest jurisdictions regarding refusals based on descriptiveness, lack of inherent distinctiveness, and registrability of personal names. Demonstrating acquired distinctiveness still requires province‑by‑province evidence, which makes it expensive and quite burdensome. CIPO is aware of these concerns, and internal discussions on potential reforms continue, although change may take time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.