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w w w . c a n a d i a n l a w y e r m a g . c o m S E P T E M B E R 2 0 1 8 51 Rowden says some suggestions put to the government were that use be a neces- sary element of enforcement of trade- mark rights, so trolls could not shut down valid trade and if the use requirement was gone to make a "bona fide intent to use" a filing requirement. "There are a number of suggestions that were made. . . . None of them found their way into the final bill. It was passed, more or less word for word, sentence for sentence, period for period as it was drafted originally." Rowden says that, at parliamentary hearings, the government "pooh-poohed" the notion that its changes would open the register to squatters. The government "more or less said, 'Why would anybody do that?'" Rowden says. "Well, it didn't take long for more than one person to do that," she says. "What has been happening is that small group of related companies have started filing applications for 45 classes of goods and services covering hundreds and hundreds of goods," she says. Evans says that, until 2017, you didn't see applicants filing for trademarks to cover all 45 classes outlined in the Nice Agreement because use was required. "We essentially went from zero to 450 or 400 applications in just one year. So, I think that this is this just a foreshadowing of what we're about to see," he says. Bill C-31's proposed end of the use requirement was met with a chorus of opposition from stakeholders, lawyers, trademark owners, academics and trade associations in Canada and the United States, says Rowden. The government's position was that, by removing use, they were removing an unnecessary administrative requirement, says Rowden. "It's not a red-tape issue; it's funda- mental to the trademark system," says Rowden. "The comment [from stake- holders] was that use is effectively the breaks that maintains the trademark reg- ister as a valuable representation of mar- ketplace activity." If the trademarks register is saturated with trademark trolls, it does not accu- rately reflect the market and makes it difficult for those looking to adopt a new trademark to assess risk, says Rowden. The cluttered trademark register will be confusing for businesses, says Evans. "There's going to be a lot more commer- cial uncertainty for businesses in terms of choosing and clearing brands in the future," he says. "Even in terms of litigation and contentious proceedings, they will become a little more complex just because you won't know from the register itself whether a party has ever used the trademark so it'll be very interesting times to say the least." There is also a constitutional aspect to cancelling the use requirement, says Rowden. To be a valid federal law, she says, amendments to the act need to fit topics for which the federal government can make laws under s. 91 of the Constitu- tion Act, which mentions patents and copyright but not trademarks. Case law has determined that the federal govern- ment can make trademark laws if they L E G A L R E P O R T Bright minds protecting bright ideas since 1893 A Top 10 Intellectual Property Boutique, as voted by Canadian Lawyer magazine! We understand the business of innovation and the vital role that IP plays in today's competitive, market-driven economy. Celebrating 125 years as Canada's IP firm! ridoutmaybee.com TORONTO | OTTAWA | BURLINGTON ntitled-3 1 2018-02-07 2:18 PM

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