Amendments under Subsection 40(3)

Publication Date: 1994-02-23

Amendments to subsection 40(3) of the Trade-marks Act rendered by the enactment of the North American Free Trade Agreement (NAFTA) on January 1, 1994, may necessitate the recalculation of deadlines for the filing of Declarations of Use. Office Practice and Procedures concerning these amendments are outlined below:

On a proposed trademark, an application is deemed to have been abandoned if a Declaration of Use is not received by the later of:

  1. six months after the Notice of Allowance; or
  2. three years after the date of filing the application in Canada.

The new Notice of Allowance forms will specify the date for response based on the foregoing criteria.

The need to request extensions of time is eliminated on proposed use applications already in receipt of their initial notice to file the Declaration of Use within 6 months if at the end of that period, the allocated three years from the date of filing has not expired.

The applicant may request a 6 month extension of time upon expiration of either time limit. The request should be justified and the prescribed fee remains applicable to each request. Further extensions of time may also be granted, if justified and the requisite fee is paid.

Extensions of time for 1 year will be granted upon request when an applicant is awaiting approval from the Department of Health and Welfare Canada on a pharmaceutical product. The prescribed fee is required for each request.

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