Extensions of time due to force majeure for priority and renewal

Publication Date: June 17, 2019

This notice is intended to clarify the practice of the Trademarks Office with respect to extensions of time due to force majeure.

Subsections 34(5) and 46(5) of the Trademarks Act (the "Act") permit an applicant to apply for an extension of time to file an application for registration having a claim to priority

34(5) An applicant is not permitted to apply under section 47 for an extension of the six-month period referred to in paragraph (1)(a) until that period has ended, and the Registrar is not permitted to extend the period by more than seven days

or to renew a registered trademark

46(5) A registered owner is not permitted to apply under section 47 for an extension of the prescribed period until that period has expired, and the Registrar is not permitted to extend the period by more than seven days.

An applicant may apply for an extension of time to file an application referred to in paragraph 34(1)(a) of the Act or renew a registration under section 46, after the time limit has passed (therefore, only a request under subsection 47(2) of the Act is applicable). The applicant must pay the prescribed fee (see section 14 of the Trademarks Regulations (the "Regulations") and item 1 of the Schedule) as well as explain the reason(s) why it could not do the act within the prescribed period. Evidence that the event has occurred is not required so long as the event was clearly described in the request.

If the Registrar grants the extension of time, the period may only be extended by a maximum of seven days.

Requests for these types of extensions of time should be addressed as follows and sent by mail or fax:

Request for extension of time on force majeure
c/o Deputy Director, Examination Division
Trademarks Office
Canadian Intellectual Property Office
50 Victoria Street
Gatineau, Quebec K1A 0C9

Fax to 819-953-2476.

The inclusion of these relief measures is derived from Article 14 of the Singapore Agreement on the Law of Trademarks and Rule 9(3) of its Regulations.

While not explicitly stated as such, subsections 34(5) and 46(5) provide relief measures for applicants to extend time limits due to a "force majeure" event.  Force majeure (often called "act of God") is a legal concept that allows a party to suspend its obligations when certain circumstances beyond its control arise, making performance of its obligations impossible. The Supreme Court of Canada (SCC) defined an "act of God," at least as it pertains to contract law, in Atlantic Paper Stock Ltd. v. St. Anne-Nack, [1976] 1 SCR 580 at 583 (hereinafter, "Atlantic") as an "event, beyond control of either party, [that] makes performance impossible." The SCC described the uncontrollable character of the event as being something "unexpected" and "beyond reasonable human foresight and skill." In addition to the unexpected character of an event, the SCC stated in Atlantic that the event must also "strike at the root" of the reason why the obligation cannot be met. When considering the occurrence of a force majeure event, courts are not interested in the occurrence of the event per se, but the specific effect of the event on the obligations of the parties. In addition to "acts of God," force majeure events can also include political or medical events.

Examples of force majeure events include, but are not limited to:

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