Opposition and Related Contentious Proceedings
This domain tests contentious practice after advertisement: pleading grounds, filing a counterstatement, evidence, cross-examination, argument, hearing and appeal. It also covers the burden of proof and the difference between opposition and expungement.
Opposition framework
After advertisement, any person may file a statement of opposition within two months under s. 38. The grounds must be pleaded with material facts: application non-compliance under s. 30, non-registrability under s. 12, non-entitlement under s. 16 and non-distinctiveness under s. 2. The applicant files a counterstatement. The opponent bears the evidential burden on each ground; the applicant must ultimately establish compliance, registrability and entitlement. Evidence is by affidavit, with cross-examination available, followed by written arguments and a hearing before the Opposition Board. The Board’s decision can be appealed to the Federal Court.
Worked example
An opponent alleges prior use of “VERDE” for coffee in Canada since 2015. The applicant filed a proposed-use application in 2020. The opponent must plead and prove use in Canada before the applicant’s filing date, because that date fixes entitlement for proposed use. If the opponent produces Canadian sales invoices and packaging bearing the mark, the applicant may be denied under s. 16(1)(a). If the opponent shows only a foreign website with no Canadian sales or advertising, the evidence may fail to establish prior use in Canada.
Related proceedings
Section 45 summary expungement is an administrative non-use attack, while s. 57 is a Federal Court action to invalidate a registration. Opposition is narrower: it attacks the application before registration. Do not plead s. 45 or s. 57 as opposition grounds.
Traps
Pleading a ground without material facts; relying on foreign use; missing the counterstatement deadline; filing evidence late; failing to cross-examine where credibility matters; and misunderstanding who bears the burden. Also avoid pleading a relative ground as if it were an absolute ground.