On June 4, 2025, the Canadian Intellectual Property Office published a new practice notice on the use of artificial intelligence ("AI") and the expectations of the Trademarks Opposition Board ("TMOB"). This notice affects the submission of documents under sections 11.13, 38 and 45 of the Trademarks Act (the "Act").1 The practice notice can be found at the following webpage:
For convenience, we highlight the changes that have come into effect, as detailed on the webpage as of the date of this bulletin.
Declaration of Use of AI
Parties to a proceeding under sections 11.13, 38, or 45 of the Act are expected to inform the TMOB and other concerned parties if they have used AI to create or generate any content in a document prepared for the purpose of a TMOB proceeding and filed with the Registrar.
Documents that would be considered to include content generated by AI include:
- Written representations or any portion thereof that have been drafted using AI;
- Any document in which a legal authority provided by AI is cited; and
- State of the register evidence generated by AI and provided to the Registrar.
Parties are expected to make a declaration stating the use of AI in preparing the document either in its entirety or for specifically identified paragraphs. The first paragraph of each document where AI is used to create or generate content must contain the following declaration:
Artificial intelligence (AI) was used to generate content in this document. All content generated by AI, and the authenticity of all authorities cited in this document, has been reviewed and verified by the [include the name of the party to the proceeding], or their trademark agent.
Although not required, this declaration may contain additional language to explain how or where AI was used.
The practice notice specifies that declarations are required only where generative AI is used to create content in a document, but not when the AI being used lacks the ability to independently generate content. Further examples of instances where declarations must be provided, and where declarations are unnecessary, are provided in the practice notice.
Failure to Provide a Declaration or False Declaration
Costs may be awarded against a non-compliant party if there is a failure to provide a declaration when it is required, or if a false declaration is provided. Further details on cost awards related to TMOB proceedings are included in the practice notice published April 1, 2025.
Concluding Remarks
With the implementation of these new practice notices, understanding the nuances and their practical impact is essential. Successfully maneuvering through these changes requires strategic insight and experience. Our team is well-equipped to help you navigate the complexities that arise from new technology and ensure compliance with proceedings at the TMOB.
Footnote
1. Trademarks Act, RSC 1985, c T-13.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
