In a recent decision on a motion to strike, the Federal Court struck a patent infringement statement of claim in its entirety, with leave to amend, for failing to “answer the fundamental questions of what product/service of each defendant is alleged to infringe what claims” of the patent at issue.

The plaintiffs in Solucore Inc. v. KJA Consultants Inc. alleged that the defendants infringed all 76 claims of Canadian Patent No. 2,921,460 (the ‘460 Patent). The statement of claim reproduced each of the 76 patent claims and prefaced them with the formulaic assertion that the defendants’ “systems and services use and/or provide the method of claim [x].” The pleading relied heavily on expansive language such as “including”, “for example” and “and/or” (which alone was used 90 times), without identifying which products/services of each defendant were alleged to infringe which claims of the ‘460 Patent.

Reviewing the jurisprudence, the Federal Court confirmed that open-ended language is not inherently improper. Pleadings may survive where only a small number of claims are asserted or where the allegedly infringing product is clearly identified and tied to defined claim elements. However, where a large number of claims are asserted without further support for allegations of infringement or where expansive language implies additional undefined grounds for relief, open-ended language is impermissible.

The warning to plaintiffs is clear: complexity and asymmetry of knowledge do not excuse vagueness. Plaintiffs must “plant a flag” to identify the specific claims allegedly infringed by specific allegedly infringing acts or products. Without that grounding, a statement of claim may be struck.

The decision may be found here.

The Canadian Intellectual Property Office’s (CIPO) 2025 pilot project on Registrar-initiated trademark registration expungement has begun to result in the expungement of trademark registrations, even when the owner responds.

Under Section 45 of the Trademarks Act, any person may request that the Registrar of Trademarks give notice to a registered trademark owner, requiring the owner to provide evidence of use of the trademark within the preceding three-year period. Failure to establish use may result in the expungement of the registration. Section 45 also permits the Registrar to give the same notice on his or her own initiative, although historically the Registrar did not exercise this power.

However, starting in January 2025, the Registrar began issuing a limited number of notices on their own initiative. Of the notices issued in January, 54% of them resulted in expungement of the registration due to failure of the owner to respond to the notice. In the fall of 2025, decisions on cases where the owner did file evidence started to be released. Two such decisions have resulted in expungement.

In Registrar of Trademarks v INFOPRO DIGITAL TRADE SHOWS, the submitted evidence did not establish use because it related only to trade shows held outside of Canada. In Registrar of Trademarks v Dion Neckwear Ltd, the submitted evidence did not establish use because it did not provide evidence of transfers in the normal course of trade (e.g. invoices).

Registered trademark owners are reminded that they need to regularly use their registered trademarks or risk losing the registrations.

Further information on the pilot project is available here. The Registrar decisions are reported here and here.

In Products Unlimited, Inc. v. Five Seasons Comfort Limited, the Federal Court provided guidance on recently amended subsection 56(5) of the Trademarks Act and the factors it will consider when deciding whether to grant leave to file additional evidence in appeals of decisions of the Registrar of Trademarks. Notably, the Court indicated that there is potentially greater flexibility in the admission of new evidence in such appeals relative to other appeals.

Current subsection 56(5) came into force on 1 April 2025 and provides:

“If, on an appeal under subsection (1), the Federal Court grants leave to adduce evidence in addition to that adduced before the Registrar, the Court may exercise, with respect to that additional evidence, any discretion vested in the Registrar.”

In interpreting subsection 56(5), the Court stated that “the specific language of subsection 56(5)… points to a more flexible approach to the leave requirement” compared to the general approach set out in case law applicable to other appeals. The Court continued by noting that granting leave is “ultimately directed at the interests of justice” and all relevant factors should be considered, including:

• the relevance, credibility, and admissibility of the evidence;
• the materiality of the evidence;
• the circumstances surrounding the delay in filing the evidence; and
• whether granting leave would cause prejudice to the opposing party.

Discussing the third factor, the Court noted that the circumstances surrounding the delay in filing the evidence “is important in trademark proceedings, but merits a more flexible application” as “[t]he choice to now require leave to file new evidence indicates Parliament’s intent to have the Board decide issues at first instance… [h]owever… the language of the subsection also signals an intention for greater flexibility in the admission of new evidence than is generally afforded in appeals”.

The full decision can be found here.

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.

Since April 1, 2025, the Trademarks Regulations has permitted the Registrar to order costs, on request, against a party in summary trademark expungement proceedings (also known as Section 45 proceedings) where a party’s unreasonable conduct causes undue delay or expense.

In Nelligan O’Brien Payne v. Amy French, the Registrar identified one type of conduct that may meet that threshold.

The Registrar flagged multiple inaccurate case citations in one of the parties’ written submissions that did not support the principles relied upon.

The Registrar warned that such errors, regardless of whether they are made inadvertently, including due to the use of unverified generative AI outputs, cause misunderstanding while wasting time and resources, potentially leading to a miscarriage of justice. Therefore, such conduct can result in an award of costs against the responsible party, even if it did not deliberately attempt to mislead.

The decision refers to a number of authorities from Canadian courts and establishes how reliance on non-existent or inapplicable citations can be prejudicial and may attract cost awards in proceedings before the Trademarks Opposition Board.

However, as no request for costs was submitted in this case, no order for costs was ultimately made.

The decision can be found here.

Businesses acquiring Canadian trademarks that may have fallen into disuse should take note: in Comité interprofessionnel du vin de champagne v. Coors Brewing Company, the Federal Court of Appeal confirmed that a new owner may not be required to justify non-use by a prior owner when defending against a summary expungement proceeding.

The appellants, two French champagne industry organizations, had argued that the owner must always justify non-use going back to the date the mark was last used. The Court rejected this position. Consistent with its ruling in a recent decision (Centric Brands Holding LLC v. Stikeman Elliott LLP), the Court held that in appropriate circumstances involving acquisition of a trademark, the new owner is not required to account for non-use pre-dating the acquisition. In other words, a purchaser of a dormant mark may only need to explain non-use from the date it acquired the mark, not from when the mark was last used by the prior owner.

On the facts, the Court upheld the lower court’s findings that there were special circumstances excusing the respondent’s non-use. Factors in favour of the respondent included that the period of non-use from the date of the acquisition was not long, that the non-use resulted from a large and complex acquisition, and that the use of the mark was subject to the approval of several provincial regulators.

However, it is important to note that acquisition alone is not sufficient to constitute special circumstances. The evidence must still satisfy the test for special circumstances. But for businesses acquiring Canadian trademarks, this decision confirms that it may be easier to justify non-use where the acquisition is recent and genuine plans for commercialization exist.

A copy of the decision is available here.

The Canadian Intellectual Property Office (CIPO) recently published its IP Canada Report 2025. The report highlights recent IP filing trends across patents, trademarks, industrial designs, and plant breeders’ rights.

In 2024, 35,374 patent applications were filed with CIPO, representing a 1% decrease relative to 2023. Notably, filings by Canadian residents increased by 5%. Non-resident applicants continued to account for the majority of Canadian patent applications.

Abroad, Canadian applicants filed 20,048 patent applications in 2023 (down 2% from 2022), with the USA, Europe, and China representing the top international destinations for Canadian patent applicants.

CIPO received 68,672 trademark applications in 2024, representing a 4% decrease relative to 2023. Although the number of trademark applications decreased for the third consecutive year, the total number of trademark applications filed in Canada over the past decade has risen by 35%.

Canadians filed 21,051 trademark applications abroad in 2023, representing an 11% decrease relative to 2022. The USA, China, and Europe were the top international destinations for Canadian trademark applicants in 2023.

The report highlights that Canada is a key international jurisdiction for securing IP rights and remains a key source of IP filings abroad.

A full copy of the report is available here.

A trademark registration grants the owner the “exclusive right to the use throughout Canada of the trademark in respect of those goods or services” (Trademarks Act, section 19).  However, that exclusive right may not extend to the recovery of monetary damages where the owner and the infringer operate in significantly separate geographical locations.

In Fruiticana Produce Ltd. v. Fruitocana Inc., the registered trademark owner operated a chain of grocery stores in British Columbia and Alberta for over thirty years and owned several registrations comprising or consisting of “Fruiticana”. The infringer operated a grocery store in Toronto, Ontario under the name “Fruitocana”.

The Federal Court found that there was clear confusion between the infringer’s name and the owner’s registered trademarks and granted the owner an injunction preventing the infringer from using the Fruitocana name. However, the Federal Court declined to award any monetary damages on the basis that there was no evidence allowing the Court to infer that the owner had suffered any damage. The Court noted that the infringer’s operation was located more than 3,000 km away from the owner’s operations, and that it was “difficult to imagine that the defendant’s operations have caused a loss of sales to the plaintiff, unless one goes grocery shopping by plane.

The full decision may be found here.

Novartis AG is the owner of a Canadian trademark registration for BEOVU for use in relation to pharmaceutical preparations for treating neovascular age-related macular degeneration. Samsung Bioepis Co., Ltd. (Samsung) manufactures a similar drug in Canada under the trademark BYOOVIZ. The drug is commercialized in Canada by Biogen MA Inc. and its related companies.

In an earlier decision on January 12, 2024, the Federal Court found that Samsung’s and Biogen’s use of BYOOVIZ violated Novartis’ rights in the BEOVU mark, amounting to trademark infringement and passing off.

The Federal Court of Appeal has now dismissed the appeals filed by Samsung and Biogen challenging the injunction granted by the Federal Court that barred them from using the trademark BYOOVIZ in Canada.

A central issue in the appeal was whether patients should be considered relevant consumers in a confusion analysis. Samsung and Biogen argued that only ophthalmologists and pharmacists were relevant and took the position that the Federal Court erred in considering the patient, as the ultimate end-user of the drug, as a relevant consumer for the likelihood of confusion analysis. The Federal Court of Appeal agreed with the Federal Court that patients do exercise some choice in the selection of drugs, as they are told the drugs’ brand names, they provide consent for the administration of the drugs, they may see the names on syringes or packaging, and they can refuse treatment or, in some cases, pay out-of-pocket for alternatives.

In dismissing the appeal, the Federal Court of Appeal also emphasized that the sounding of the marks is another important factor to take into consideration as drug names are communicated orally between health care professionals, their staff and patients. Although ophthalmologists and pharmacists may be capable of noticing small differences between drug names, the Court noted that confusion was still likely, especially from a patient perspective.