Canadian Trademark Law Year In Review 2025: Notable Decisions And Updates

2025 was a big year for trademark law in Canada: amendments to the Trademarks Act and Trademarks Regulations came into force, trademark examination times were significantly reduced, and numerous new Federal Court and Federal Court of Appeal decisions on important trademark law principles were issued that provided additional clarity to brand owners on many aspects of trademark protection and maintenance. Here are some of the key developments and decisions in trademark law from 2025 and a preview of what to expect in 2026.

• Amendments to the Trademarks Act and the Trademarks Regulations
• The Trademark Provisions of Quebec's Bill 96 Are Now in Effect
• Significant Reductions in Trademark Application Processing Times
• Recent Change of Ownership as a "Special Circumstance" in Non-Use Cancellation Proceedings: Centric Brands Holding LLC v. Stikeman Elliott LLP, 2025 FCA 161
• No Escape for Counterfeiters from Damages Awards: Patel v. Dermaspark Products Inc., 2025 FCA 145
• Failed Injunction Highlights the Importance of Registering Trademarks: Schlegel Health Care Inc. v. Edgewood Health Network Inc., 2025 FC 1639
• Entitlement to a Trademark Requires Continuous Use: Sea Tow Services International, Inc. v. C-Tow Marine Assistance Ltd., 2025 FC 27
• Who is the Relevant Consumer? Samsung Bioepis Co., Ltd. v. Novartis AG, 2025 FCA 212
• Relief From Implied Undertaking Rule Denied: Seylynn (North Shore) Development Limited Partnership v. Denna Homes Group et al, 2025 FC 491
• No Estoppel in Trademark Oppositions: Astra Capital Incorporated v. Astra Energy Services Corp., 2025 TMOB 114
• More Jurisprudence on Expungement for Bad Faith: fxswede AB v. Gengbin Xu, 2025 FC 1864
• When Does the New Leave Requirement for Appeal Evidence Apply? Big Duck Games, LLC v. X-Flow Ltd., 2025 FC 1704
• Confusion Without Compensation: Fruiticana Produce Ltd. v. Fruitocana Inc., 2025 FC 1990
• A Preview of 2026

Amendments to the Trademarks Act and the Trademarks Regulations

On April 1, 2025, significant amendments to the Trademarks Regulations came into force, along with related amendments to the Trademarks Act that were first included in the federal budget back in 2018. These long-awaited amendments expanded the powers of the Registrar of Trademarks and amended evidentiary rules in trademark proceedings, all with the goals of facilitating the more efficient resolution of trademark disputes and discouraging parties from engaging in behaviour during proceedings that causes unnecessary delays or expense.

Some of the most notable amendments include:

• a new costs award regime in proceedings before the Trademarks Opposition Board;
• new authority by the Board to issue confidentiality orders for evidence filed in trademark oppositions and section 45 non-use cancellation proceedings;
• expanded powers for the Board to case manage proceedings before it;
• amendments to section 56(5) of the Trademarks Act, which eliminated a party's automatic right to file new evidence on appeal of a Board decision to the Federal Court and now require the Court to expressly grant leave for new evidence to be filed on appeal; and
• the introduction of section 53.2(1.1) of the Trademarks Act, which requires a registered trademark owner to show that it has used its mark if it brings an infringement proceeding within the first three years of registration.

For more details on these amendments and how they are likely to affect trademark proceedings in Canada, please see our previous Cassels Comment.

The Trademark Provisions of Quebec's Bill 96 Are Now in Effect

On June 1, 2025, the trademark-related provisions of Quebec's much-discussed Bill 96 and accompanying regulations, which amended the province's Charter of the French Language, came into effect. One of the most significant changes that these amendments brought to Quebec's existing regime for mandating French-language text in commerce and business is that the scope of the trademark exception to translation on products or their packaging has been narrowed.

Previously, non-French text that appeared on a product or its packaging was exempt from translation if the text was part of a registered or recognized trademark. Following the June 2025 amendments, text that appears as part of a registered or recognized trademark must still be translated to French in equal or greater prominence as the non-French text if that text consists of a generic term or description of the product, other than the name of the product as sold (which continues to be exempt from translation). As a result, sellers of consumer products in Quebec who previously relied on the broad trademark exception to avoid translating even descriptive aspects of text have been forced to re-think their translation decisions.

More details on the amendments introduced by Bill 96 and its regulations can be found in our previous Cassels Comments here and here. We note that enforcement of Quebec's French translation requirement by the OQLF, the Quebec government agency responsible for enforcing the Charter of the French Language, appears to have tightened since the coming-into-force of the new amendments, so this is an area that businesses selling products in Quebec should consider carefully.

Significant Reductions in Trademark Application Processing Times

One of the most positive and welcome changes to trademark filing procedure in Canada in 2025 was the Canadian Intellectual Property Office's significant efforts to reduce its trademark application examination backlog and processing times. As many brand owners frustratingly learned, the Canada's Trademarks Office was subject to an overwhelming backlog of trademark applications in the last several years – it could take up to 3 or 4 years to examine newly filed trademark applications at the peak of the backlog. Following concerted efforts undertaken by the Office to reduce that backlog – including the hiring of over 100 new examiners and the introduction of new procedures intended to reduce the number of examiner's reports a single application can receive – the Office has now all but eliminated that backlog.

Currently, the Office quotes a 7.5 month wait time between when a new trademark application is filed and when it is examined. This brings Canada closer to the examination wait periods in other jurisdictions with similar trademark examination systems. The Office also recently announced that it expects to examine approximately 23,000 national trademark applications within the next three months, which is equivalent to nearly one-third of the total number of new trademark applications that were filed in Canada in the Office's 2024-2025 fiscal year.

Recent Change of Ownership as a "Special Circumstance" in Non-Use Cancellation Proceedings: Centric Brands Holding LLC v. Stikeman Elliott LLP, 2025 FCA 161

In this appeal of a section 45 non-use cancellation decision, the Federal Court of Appeal (FCA) expanded the test for when non-use can be excused on account of "special circumstances."

The trademark owner in this case, Centric Brands Holding LLC, argued before the Trademarks Opposition Board and the Federal Court that it had only acquired ownership of the trademark at issue after the section 45 notice was issued against the mark, so it was unable to adduce evidence of use of the mark before the date of the notice. The Board held, and the Federal Court agreed, that the change in ownership in this case did not constitute a special circumstance under the section 45 test because prior jurisprudence indicated that new ownership of a mark is only a valid special circumstance if the change in ownership happened before the date of the section 45 notice (i.e., during the relevant three-year period where use must be demonstrated), whereas in Centric's case, it only gained ownership after the issuance of the section 45 notice.

On appeal, the FCA found that the Federal Court erred by not applying the "new ownership jurisprudence" to find that Centric had demonstrated special circumstances. The FCA emphasized that even though Centric had technically only gained ownership of the trademark after the date of the section 45 notice, the transfer agreement between Centric and the previous owner of the mark had been signed before the date of the section 45 notice. The FCA therefore held that it would be an improperly narrow reading of the new ownership jurisprudence to find that it did not apply in this case, particularly given the summary nature of section 45 proceedings and the light evidentiary onus on trademark owners. The FCA therefore allowed the appeal and ordered that Centric's trademark registration be maintained.

No Escape for Counterfeiters from Damages Awards: Patel v. Dermaspark Products Inc., 2025 FCA 145

In a significant win for brand owners in the fight against counterfeiting, the FCA upheld a large damages award issued by the Federal Court against a counterfeiter for trademark infringement, copyright infringement, unfair competition, and punitive damages.

The Federal Court had awarded the respondents $45,000 in damages after finding that the appellants, a boutique full-service day spa, were liable for infringement by purchasing and using counterfeit versions of the respondents' facial treatment machine and related treatment products. On appeal, the appellants argued, among other things, that the Federal Court had erred in its damages assessment because the respondents had not proven the damages that the Federal Court ultimately awarded.

The FCA dismissed the appeal, emphasizing that where harm to goodwill and reputation is difficult to quantify, an estimate of lump-sum compensatory damages may be awarded provided there is some evidence of harm. In this case, the FCA found that the Federal Court did not err in accepting that the respondents had experienced a lost sale due to the appellants purchasing a counterfeit machine instead of purchasing one from the respondents and that the respondents' evidence offered a reasonable estimate of the value of the lost sale.

The FCA also upheld the Federal Court's decision to impose the damages award jointly and severally on the appellants (which included the corporate appellants' director and sole shareholder in her personal capacity), emphasizing that that incorporation does not shield individuals who deliberately pursue conduct that is likely to constitute infringement.

Failed Injunction Highlights the Importance of Registering Trademarks: Schlegel Health Care Inc. v. Edgewood Health Network Inc., 2025 FC 1639

In this decision, the Federal Court dismissed a motion for an interlocutory injunction, and in doing so, highlighted the importance of registering trademarks or presenting strong evidence of use when asserting an unregistered or common law trademark.

The plaintiffs, one of Canada's largest providers of mental health and addiction services, sought an interlocutory injunction to restrain the defendant, another large provider of mental health and addiction services in Canada, from using the trademark EHN GUARDIANS in association with its services, as the plaintiffs argued that they had significant common law rights in their own GUARDIANS mark. The plaintiffs grounded their request for an interlocutory injunction on a claim of passing off under subsection 7(b) of the Trademarks Act, which can be based on unregistered common law trademarks.

The Court held that the plaintiffs did not meet the well-established test for an interlocutory injunction, which requires the existence of a serious issue to be tried, irreparable harm to the plaintiffs if the injunction is not granted, and that the balance of convenience favours granting the injunction. Specifically, the Court emphasized that without a registration, the plaintiffs did not benefit from a presumption that their trademark was valid, so establishing a serious issue to be tried required compelling evidence from the plaintiffs as to the goodwill and reputation in their mark. The Court found that the plaintiffs' evidence supporting their claim to the use of their GUARDIANS mark was weak, which undermined their claim of goodwill and fell short of the standard of a strong prima facie case. The Court further found that the plaintiffs had failed to demonstrate irreparable harm, as they had provided no evidence of lost sales or damages resulting from the defendants' use of their own EHN GUARDIANS mark.

The Court therefore refused to grant an injunction, exemplifying the the high evidentiary threshold for obtaining an interlocutory injunction in Canadian trademark cases and the advantages of having a registered trademark when doing so.

Entitlement to a Trademark Requires Continuous Use: Sea Tow Services International, Inc. v. C-Tow Marine Assistance Ltd., 2025 FC 27

In this decision, the Federal Court ruled on a series of disputes between two marine assistance companies arising from their use of confusingly similar trademarks. The Court's decision demonstrates the importance of early and continuous use of registered marks, particularly for foreign registrants.

Sea Tow Services International Inc. (Sea Tow), brought a claim for infringement against C-Tow Marine Assistance Ltd. (C-Tow), based on Sea Tow's Canadian trademark registrations for marks incorporating the term SEA TOW that it had obtained in 2014 and C-Tow's allegedly infringing use of confusingly similar C‑TOW marks. At the same time as the infringement action, C-Tow brought an application to invalidate Sea Tow's registrations based on non-entitlement, as C-Tow alleged that it had been using its C-TOW marks in Canada since the 1980s.

The Court acknowledged the relevance of section 17(2) of the Trademarks Act to this case, as that provision prevents a trademark registration from being expunged on the ground of prior use if the expungement application is brought more than five years after the registration date, unless the applicant can establish that the registration owner adopted its trademark with knowledge of the applicant's prior use.

In this case, the Court found that C-Tow met its burden of establishing that it had used its C-TOW marks before Sea Tow had started to use its SEA TOW marks. Although Sea Tow attempted to rely on use of its SEA TOW marks in Canada in the mid-1980s, the Court found that this use was followed by a lengthy period of non-use, which constituted abandonment. The Court emphasized that entitlement to trademark protection in Canada is based on continuous use of a mark, so the mere fact that Sea Tow had temporarily used its marks in the 1980s before ceasing use was not enough to give Sea Tow entitlement over C-Tow. The Court therefore found that C-Tow's date of first use of its C-TOW marks in the 1980s pre-dated Sea Tow's date of first use of its SEA TOW marks in 2010, which gave C-Tow entitlement to the mark over Sea Tow.

The Court went on to find that Sea Tow had knowledge of C-Tow's prior use since at least 2009, based on documentary evidence and communications between the parties. As a result, section 17(2) of the Trademarks Act did not prevent C-Tow from seeking to invalidate Sea Tow's registrations. Accordingly, the Court ordered that Sea Tow's registrations be struck from the trademarks register.

Who is the Relevant Consumer? Samsung Bioepis Co., Ltd. v. Novartis AG, 2025 FCA 212

In this case between competing pharmaceutical companies, the FCA confirmed that end-user patients of prescription drugs can be the relevant consumer for the purpose of a confusion assessment, particularly if the marks at issue are confusingly similar in sound.

The FCA considered a set of appeals and cross-appeals from a Federal Court decision that enjoined the appellants, a group of pharmaceutical companies, from using the trademark BYOOVIZ in association with a drug intended to treat a specific eye condition (VEGF) on the basis that it was confusing with the respondents' registered trademark for BEOVU, which was registered and used in association with a similar anti-VEGF drug. One of the key issues before the Federal Court and on appeal was who the "relevant consumer" should be when assessing if the relevant consumer of the parties' goods would be confused between the marks. The appellants argued that the relevant consumer in this case should be limited to ophthalmologists and pharmacists, as end-user patients of anti-VEGF drugs almost never ask for a specific anti-VEGF drug or purchase the drug directly, meaning that they would not encounter the parties' trademarks.

The FCA upheld the Federal Court's rejection of the appellants' argument, concluding that the end-user patients were relevant consumers for the purpose of the confusion assessment in this case. The FCA agreed with the Federal Court's analysis that end-user patients who take pharmaceutical drugs can be relevant consumers where they are told the drug's brand name, consent to treatment, may see the drug name on syringes or packaging, and can choose to refuse a specific drug in favour of an alternative. The FCA also found no error in the Federal Court's conclusion that end-user patients may be at a higher risk of confusion than ophthalmologists and pharmacists because patients do not possess specialized knowledge of pharmaceutical drugs that allows them to perceive small differences in drug names.

Finally, the FCA found no error in the Federal Court's conclusion that the resemblance between the parties' marks in sound was particularly relevant in this case, given the role that oral communication plays between medical professionals and patients. For all those reasons, the FCA dismissed the appeals and upheld the Federal Court's holding that confusion between the parties' marks was likely.

Relief From Implied Undertaking Rule Denied: Seylynn (North Shore) Development Limited Partnership v. Denna Homes Group et al, 2025 FC 491

In this decision, the Federal Court refused to grant relief from the implied undertaking rule to allow discovery transcripts in a trademark infringement and passing off action to be used in a separate proceeding relating to shareholder oppression. The plaintiff in this case, who sought relief from the implied undertaking rule, argued that relief was justified because of the overlap in material facts in both proceedings and the public interest in allowing the plaintiff to use the discovery transcript to challenge contradictory evidence that the defendant's witness had allegedly given in the other proceeding.

The Court rejected both of the plaintiff's arguments. The Court was not satisfied that there was sufficient commonality between the two proceedings, as neither of the individuals involved in the trademark proceeding were personally involved in the shareholder oppression proceeding and the proceedings sought different relief. The Court further concluded that the public interest did not support relieving the plaintiff from the implied undertaking rule, as the plaintiff had failed to put the alleged inconsistences to the defendant's witness and failed to specify how the plaintiff would use the transcripts in the other proceeding.

Cassels lawyers Mark Davis and Jessica Zagar acted as counsel for the defendant. For more details on this decision, please see our previous Cassels Comment discussing it.

No Estoppel in Trademark Oppositions: Astra Capital Incorporated v. Astra Energy Services Corp., 2025 TMOB 114

In this unique trademark opposition decision, the Trademarks Opposition Board refused a trademark application based on confusion with the opponent's registered mark, which had been filed after the application at issue but had proceeded to registration first. In response to the opposition, the trademark applicant attempted to raise an estoppel argument, arguing that the opponent should not be permitted to bring confusion grounds of objection against the applicant's mark when the opponent had previously deleted services in its own application to overcome an objection from the Trademarks Office based on confusion with the applicant's mark.

The Board rejected the applicant's estoppel argument, emphasizing that the Board is a creature of statute and there is no support in the Trademarks Act for the Board having the authority to apply equitable principles such as estoppel when assessing oppositions. The Board further held that even if it had the authority to find estoppel, it would not have estopped the opponent from raising confusion-based grounds of opposition, as the opponent's removal of services from its own application to overcome the Trademarks Office's objection did not amount to an admission by the opponent that its mark was not confusing with the applicant's. Therefore, the Board went on to conduct the usual confusion analysis in a trademark opposition and concluded that the opponent's mark was likely to be confusing with the applicant's mark.

Cassels lawyers Stephen Selznick and Eleanor Wilson acted as counsel for the opponent in this opposition.

More Jurisprudence on Expungement for Bad Faith: fxswede AB v. Gengbin Xu, 2025 FC 1864

2025 helpfully provided another Federal Court decision in the evolving jurisprudence relating to the bad faith ground for trademark expungement. The applicant, a company that used the trademark TRESS WELLNESS as its main brand and applied to register a design mark incorporating that phrase, sought to have the respondent's trademark registration for the word mark TRESS WELLNESS expunged. Among other grounds, the applicant alleged that the respondent had applied to register its mark in bad faith because it was aware of the applicant's rights in the TRESS WELLNESS mark before applying and had attempted to sell the registration to the applicant for $30,000.

The Court accepted the applicant's bad faith ground of opposition, concluding that the evidence supported an inference that the respondent had filed the application to extract value from the applicant, who was the rightful owner of the mark. In particular, the Court emphasized the respondent's demonstrated pattern of filing multiple trademark applications with no apparent connection to those marks and the large amount of money for which the respondent had offered to sell the mark to the applicant. In the Court's view, those circumstances were enough to infer bad faith, especially when considered alongside the respondent's lack of use of the mark. The Court therefore ordered the expungement of the respondent's registration.

When Does the New Leave Requirement for Appeal Evidence Apply? Big Duck Games, LLC v. X-Flow Ltd., 2025 FC 1704

In another notable decision related to section 45 non-use cancellation proceedings this year, the Federal Court set aside a section 45 expungement order by the Registrar of Trademarks following new evidence tendered by the trademark owner on appeal. In doing so, the Court provided clarity on the implementation of the amendment to section 56(5) of the Trademarks Act, which as discussed above, now requires parties to obtain leave from the Court before filing new evidence on appeal of a Registrar decision.

In the proceeding below, the Registrar struck the trademark owner's registration pursuant to section 45 because the owner did not respond to the section 45 notice it had received. The trademark owner brought an application before the Federal Court to appeal the Registrar's decision before April 1, 2025, the date that the amendment to section 56(5) came into effect. The trademark owner then filed new evidence not before the Registrar as part of its application record. However, that application record was only filed after April 1, so a preliminary issue the Court had to consider was whether the April 1 in-force date of the amendment to section 56(5) required the trademark owner to obtain leave to file its new evidence.

The Court concluded that the amended leave requirement did not require the trademark owner to obtain leave before filing its new evidence, as the trademark owner had commenced the appeal before April 1, 2025 and had specified in its notice of application that it intended to rely on new evidence in support of the appeal. The Court went on to find that the new evidence was material and demonstrated use of the mark at issue during the relevant three-year period, thus allowing the appeal and setting aside the Registrar's expungement proceeding.

Notably, the Court did not comment on whether it would have granted leave to the trademark owner to file new evidence had the amended version of section 56(5) applied. We will have to wait for clarity on how the Federal Court will apply the new leave requirement.

Confusion Without Compensation: Fruiticana Produce Ltd. v. Fruitocana Inc., 2025 FC 1990

This Federal Court default judgment decision provides a useful reminder to trademark litigants that monetary damages can be difficult to obtain in trademark infringement cases, even when confusion is established. In this case, the plaintiff demonstrated that its trademark FRUITICANA, which it used in association with the operation of grocery stores, was likely to be confusing with the defendant's trademark FRUITOCANA, which was also used in the operation of a grocery store. The Court was therefore quick to grant the plaintiff an injunction prohibiting the defendant from continuing to use its FRUITOCANA mark.

However, the Court declined to award any damages to the plaintiff for the defendant's infringement to date. While the Court acknowledged that nominal damages are typical in successful trademark infringement claims, it emphasized that even nominal damages require evidence from which loss or harm to the plaintiff caused by the infringement can at least be inferred. In this case, the Court was not satisfied that the plaintiff had suffered any damages from the defendant's activity, especially considering the geographical distance between the parties' businesses.

This decision therefore reiterates the well-established but often overlooked principle that damages are not presumed in trademark infringement cases, so plaintiffs must be prepared to tender evidence on damages instead of relying solely on the mere finding of infringement.

A Preview of 2026

The issues at play in 2025 trademark decisions foreshadow some potential new developments in Canadian trademark law in 2026. Canadian trademark practitioners will be looking for clarity on how the Trademarks Opposition Board and the Federal Court intend to apply the new powers given to them by this year's amendments to the Trademarks Act and the Trademarks Regulations, including how the Federal Court will determine when leave should be granted for new evidence on an appeal to the Federal Court and when the Board will choose to exercise its new powers to award costs in trademark opposition and non-use cancellation proceedings. In Quebec, brand owners will closely be monitoring the provincial government's enforcement of the amendments to the Charter of the French Language and any guidance on some of the more uncertain aspects of those amendments, such as when a trademark is considered to be "recognized" and what types of text in a trademark constitute the "name of the product as sold." Finally, many trademark applicants in Canada are hoping to see decisions in 2026 that provide much-needed clarity on the "not inherently distinctive" ground of objection to trademark registration, which as discussed in our previous Cassels Comment, has become a growing source of frustration for brand owners.

Overall, 2026 promises to be another exciting year in trademark law.

Special thanks to Emma Baliat and Shayla Joshi for their assistance with this article.

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