A Canadian trademark registration does not expire for lack of use the way a lease or a licence might lapse on its own, but it can be taken away for exactly that reason if someone asks. A Section 45 non-use proceeding is a summary mechanism built into the Trademarks Act to clear registrations that no longer reflect any real use, and it is one of the more efficient tools available in Canadian trademark practice, cutting in favour of whichever side understands it first.
What a Section 45 Notice Actually Does
On request by any person, for a fee, or on the Registrar's own initiative, the Registrar issues a notice to the owner of a registered trademark requiring evidence of use. The requesting party does nothing further after asking for the notice; from that point forward, the entire evidentiary burden rests on the registered owner. The owner must show use of the mark in Canada, good by good and service by service, during the three years immediately preceding the date of the notice, or establish special circumstances that excuse the absence of use. A registration that survives on paper but has quietly fallen out of commercial use is exactly what this proceeding is built to find.
The Deadlines Are Short and the Burden Is the Owner's Alone
The owner has three months from the notice to file evidence, typically by affidavit or statutory declaration, with one further extension available on request, to a maximum of four additional months. Evidence that covers some registered goods and services but not others exposes the uncovered portion to deletion, since the burden must be met item by item rather than through a general assertion that the mark remains in use. Once evidence is filed, both sides may make written representations, and either may request a hearing before the Trademarks Opposition Board issues a decision maintaining, amending, or expunging the registration.
A Tool That Cuts Both Ways
Section 45 is worth understanding from both directions, because a firm's clients sit on both sides of it at different times. Where a registration blocks a client's own trademark application on a confusion citation, requesting a Section 45 notice against that registration is often a cheaper and faster path to clearing the file than arguing that the marks are not confusing; if the cited owner cannot show use, the citation simply falls away. Where a client's own registration receives a notice, the same short deadline becomes an immediate decision point, not an administrative formality: can genuine use be shown for each covered good and service, and if not, is the registration worth defending on special circumstances or better allowed to lapse in an orderly way.
Why "Use It or Lose It" Is the Right Description
The name fits because the register is meant to reflect marks that are actually doing work in the Canadian marketplace, not a static list of names a company once registered and stopped using. For a brand owner sitting on a broad registration covering goods or services the business no longer sells, a Section 45 notice, whenever it arrives, is the moment that gap becomes visible and consequential. For a competitor eyeing a mark blocked by an apparently dormant registration, it is often the most direct route to clearing the path.
We act on Section 45 proceedings for clients on both sides, whether requesting a notice to clear a blocking citation or defending a registration once a notice has issued, and we take these on a single-proceeding basis without requiring an ongoing retainer.