A trademark application in Canada may be objected to by a trademark examiner on a number of grounds, including if the trademark consists of a term that is considered to be primarily a name or surname, if the trademark is considered to be clearly descriptive or deceptively misdescriptive, or if the trademark is otherwise considered not inherently distinctive. In such circumstances, trademark applicants are afforded the opportunity to file evidence demonstrating that the trademark was distinctive as of the filing date of the application.

On January 27, 2026, the Canadian Intellectual Property Office published a new Practice Notice providing clarification regarding the form of evidence of distinctiveness to be filed during examination of trademarks.  When the Registrar of Trademarks requests such evidence under subsection 32(1) of the Trademarks Act, applicants should be mindful of both the substance and the form of the materials submitted.  Ideally, the evidence submitted should be in the form of an affidavit or statutory declaration.

Under the new Practice Notice, the Registrar will not refuse to consider evidence solely because it is not submitted in affidavit or statutory declaration form. Any evidence filed in support of a claim of acquired distinctiveness (such as advertising samples, sales figures, or market presence information) will be assessed, and depending on its credibility and probative value, the Registrar may give the evidence full weight, partial weight, or no weight at all. The ultimate determination of whether a trademark had acquired distinctiveness before the filing date will be based on the totality of the evidence before the Registrar.