US vs. Canadian Trademark Applications: Same Goal, Different Roads

Clients who are building a brand on both sides of the border are often surprised at how differently the U.S. and Canada get to the same destination: a registered trademark.

1. Use of the mark

This is the biggest structural difference. In the U.S., you can't get to registration without proof of use in commerce — either at filing, or later through a Statement of Use if you filed on an intent-to-use basis. A specimen showing the mark in actual commercial use is mandatory before the USPTO will issue a certificate.

In Canada, none of that is required. Since the 2019 amendments to the Trademarks Act, an applicant no longer has to use the mark, or even declare an intention to use it, before registration issues. You can register a mark in Canada purely on the basis of the application itself. That said, use still matters down the road — a Canadian registration becomes vulnerable to summary cancellation for non-use once it's been on the register for three years.

2. Filing basis

Tied to the point above, U.S. applications must be filed under a specific basis — use in commerce (Section 1(a)), intent to use (Section 1(b)), or reliance on a foreign registration or application (Section 44). Each carries its own evidentiary requirements. Canada has no equivalent menu of filing bases; every application is treated the same way regardless of use status.

3. Fees and classes

Both offices now charge per Nice class, but the numbers differ. As of 2026, the USPTO's base fee is $350 USD per class (rising to $550 if the goods/services description isn't drawn from the pre-approved ID Manual), plus separate fees later for a Statement of Use, a Section 8 declaration between years 5–6, and Section 9 renewal every 10 years. CIPO charges $491.06 CAD for the first class and $149.04 CAD for each additional class, with a renewal fee (also per class) every 10 years — but no interim use declaration is required in between.

4. Examination and opposition

Substantively, the two offices aren't far apart: both examine for distinctiveness, descriptiveness, and a likelihood of confusion with earlier marks, and both publish allowed applications for opposition. The opposition windows differ — 30 days in the U.S. (extendable), two months in Canada (also extendable) — and Canada's regime includes a "bad faith" ground of opposition that the U.S. doesn't have as a standalone statutory ground.

5. Maintenance after registration

The U.S. requires ongoing proof of use to keep a registration alive: a Section 8 declaration (with specimen) between the 5th and 6th year, and again at each 10-year renewal. Canada requires no proof of use to renew — a registration simply renews every 10 years — though, as noted, it can still be attacked and cancelled for non-use at any time after the three-year mark.

Practical takeaway

For a business filing in both countries, this means the U.S. side will demand real commercial use evidence and documentation discipline long before the Canadian side ever asks for it — but a Canadian registration's easier path to the register doesn't make it bulletproof. If the mark isn't actually being used in Canada, it can be knocked out later just as easily as a U.S. registration can be refused up front for lack of use.

Getting the filing strategy right on both sides — basis, classes, and timing — at the outset avoids a lot of expensive cleanup later.

Scott Miller, B.A., LL.B.

Certified Specialist in Patent, Trademark and Copyright, Law Society of Ontario

Principal, SRM (srmip.com)

By Scott Miller, B.A., LL.B. — SRM Insights