Invalidating a trademark

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Once a trademark registration is more than five years old it becomes more difficult to invalidate the trademark rights.If the registration is less than five years old, the party challenging the trademark rights can rely on any ground that could have prevented registration initially.

For example, a company may wish to use a trademark that is the same as, or similar to, a trademark registered by a competitor.An example of a material misstatement is where the registrant incorrectly states, either in the application as filed or in a Declaration of Use, that it has used the trademark in Canada.A misstatement that is not material, such as an incorrect date of first use that does not affect entitlement, is not cause for invalidity. An innocent or even negligent misstatement that fundamentally affects the registration will be grounds for invalidating the registration.If the registration you wish to cancel is on the Supplemental Register, rather than the Principal Register, then there are no restrictions pertaining to the grounds that can be asserted, even if the registration is over five years old.It is important to pay attention to the date of registration when you are seeking to invalidate trademark rights.

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