In a decision issued January 9, 2026, the Federal Court of Appeal (per LeBlanc JA, Roussel JA, and Heckman JA) (“FCA”) upheld the Federal Court’s (“FC”) decision to maintain three of Coors Brewing Company’s (“Coors”) trademark registrations related to beer products (collectively “the Trademarks”). The FC had held there were special circumstances that excused the non-use of the Trademarks during the relevant time period (2024 FC 169).
Comité Interprofessionnel du Vin de Champagne v Coors Brewing Company, 2026 FCA 2
Issues:
The appeal raised two issues:
- Whether the FC erred in finding that there is no fixed legal rule for determining when the period of non-trademark use under section 45 of the Trademarks Act (RSC 1985, c T-13) begins.
- Whether the FC erred in refusing to interfere with (1) the Registrar’s finding that special circumstances justified determining the starting point of the period of non-use to be the date of acquisition of the Trademarks; and (2) the Registrar’s decision to excuse the absence of use during this period.
Background:
At the request of the Appellants, the Registrar issued a notice under section 45 of the Trademarks Act requiring Coors to demonstrate the use of the Trademarks within the three years preceding the date of the notice, and if unable to do so, to show the last date of use and provide reasons justifying the absence of use of the Trademarks.
The purpose of section 45 has been described as removing “deadwood” from the Register of Trademarks (“Register”), that is, expunging registrations that are clearly no longer in use. Upon receiving a section 45 notice, the trademark owner must file evidence showing that the trademark was in use in Canada in the previous 3-year period or showing that “special circumstances” existed that excused any non-use of the trademark since the time it was last used in Canada.
With respect to the Trademarks in issue, Coors filed evidence showing that it had only recently acquired the Trademarks by way of assignment following the acquisition of Miller Brewing International Inc. six months prior to the issuance of the section 45 notice. Coors was unable to show the use of the Trademarks during the three-year period prior to the notice.
The Registrar’s Decision:
The Registrar refused to expunge the Trademarks from the Register. Although a trademark owner must normally show there were special circumstances excusing the non-use since the date the trademark was last used, in the circumstances of this case, the Registrar held that the period of non-use was to be calculated as of the date of the acquisition of the Trademarks by Coors. The Registrar held that it would be too burdensome to require a new trademark owner to justify the absence of use by the previous owner. As a result, Coors had to justify only the non-use for the six months since it acquired the Trademarks.
The Registrar found there were special circumstances out of Coors’ control justifying the non-use of the Trademarks during the short six-month period following the complex acquisition. Coors was in the process of obtaining regulatory approval before marketing its new products, including submitting samples of the products and producing the corresponding product labels. The Registrar found there was a serious intention to resume the use of the Trademarks and refused to expunge the registrations.
The FC Decision:
On appeal, the FC found there were no grounds to intervene with the Registrar’s decision. The Registrar made no errors in using the date of the acquisition as the starting point for the period of non-use to be justified and in identifying special circumstances which excused the non-use of the Trademarks.
The FCA Decision:
The FCA held the FC did not err in dismissing the appeal. The FCA relied on and followed the prior FCA judgement in Centric Brands Holding LLC v Stikeman Elliot LLP, 2025 FCA 161 (“Centric Brands”), which issued several months before the present decision. In Centric Brands, the FCA had accepted the validity of the so-called “New Owner Jurisprudence”. The principle behind this jurisprudence was described as follows by the FCA:
The recent acquisition of a trademark may give rise to special circumstances contemplated in subsection 45(3) of the Act such that, in responding to a notice pursuant to subsection 45(1) in respect of the registration of the trademark, the new owner is not required to account for a period of non-use pre-dating the acquisition. In such circumstances, the task of the new owner of a registered trademark in section 45 proceedings is to establish special circumstances for non-use in the limited period from the date of acquisition to the date of the notice. (Centric Brands at para 30)
The FCA in the present case found they were bound by the Centric Brands decision which authorizes a more flexible reading of section 45 that permits, in some instances, the date of acquisition of a registered mark to be used as the starting point of the period requiring justification for the non-use of a trademark.
The FCA highlighted that Centric Brands states that the recent acquisition of a trademark does not automatically result in the application of the New Owner Jurisprudence. Whether special circumstances exist is up to the trier of fact and is owed deference on appeal (Centric Brands at para 43). Since there were no discernable palpable and overriding errors in the findings of the FC or the Registrar regarding the special circumstances excusing the non-use of the Trademarks during the relevant period, the FCA dismissed the appeal.
Disposition:
The Appellants’ appeal was dismissed. The Appellants have 60 days to apply for leave to appeal to the Supreme Court of Canada.