Recent TMOB Decision Shows That Sometimes, Establishing Use In A Section 45 Proceeding Is Straightforward

In the recent decision of BCF S.E.N.C.R.L./BCF LLP v Cölner Hofbräu P. Josef Früh Holding KG, 2026 TMOB 164, the Trademarks Opposition Board (TMOB) maintained a registration for the trademark FRÜH & DESIGN in its entirety.

While many section 45 decisions that we report on result in the partial or complete expungement of a registration, this case serves as a reminder that a registration will be maintained where the owner provides clear evidence of use during the relevant period.

The registration covered “Top fermented beers”. In response to a section 45 notice, the owner filed evidence showing the manner in which the mark appeared on its beer cans sold in Canada, together with information regarding its Canadian distribution network, sales volumes, invoices, and delivery records. The evidence established that thousands of cans of beer bearing the mark were sold in Canada during the relevant period through retailers in Alberta and Saskatchewan.

The TMOB reiterated that the burden of proof in a section 45 proceeding is light and that there is no prescribed type of evidence that must be furnished. In this case, the TMOB was satisfied that the evidence demonstrated sales of beer in Canada in association with the mark during the relevant period.

The decision is a useful reminder that section 45 proceedings do not necessarily require extensive or complicated evidence. The case also highlights the value of working with a registered trademark agent when preparing evidence in response to a section 45 notice.

A copy of the decision is available here.