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Basis of an Application
A Canadian application may be based on use in Canada, proposed use, or upon a counterpart foreign registration or application. Priority for the Canadian application can be obtained under the International Convention if the Canadian application is filed within six months of the filing of an originating foreign application. In other countries, similar bases exist for filing.
If the mark has been used commercially in Canada, that is, the mark has been used in association with the wares (goods) at the time of transfer of the property in or possession of such wares, in the normal course of trade, the application is based on use in Canada. The date of first use in Canada for each category of wares or services associated with the mark is required. Such date may be stated as being "at least as early" as some specified date by which the applicant is confident that use has commenced. If one or more of the items sold under the mark falls within a general class, a single date of earliest use can be given for the entire class, but in such case, each item within the class must have been sold under the trademark in Canada prior to the date of application. In the case of services, the mark is deemed to be used in association with services if it is used or displayed in the performance or advertising of such services.
If the trademark has not yet been used in Canada for the wares or services contemplated, and it is expected that the mark will be used in about the next three years or so, it is possible to file a trademark application on the basis of proposed use in Canada. A declaration that the mark has been used in Canada must be prepared, signed and filed in the Trademarks Office before the trademark will be registered.
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