When defending trademark rights in overseas markets, understanding how the official authorities evaluate evidence is often the first crucial step towards a successful resolution.
It is a common occurrence globally for trademark applications to face rejection during the examination stage. The core challenge for applicants is how to persuade the official authority during the review process by submitting effective evidence. Different countries have different practical emphases on this matter.
The Canadian Intellectual Property Office (CIPO) recently updated its Practice Notice concerning the form of evidence in trademark examination, clarifying key principles. Some time before this, the detailed evidence guidelines issued by the China National Intellectual Property Office (CNIPA) demonstrated another systematic approach to evidence presentation.
By focusing on the Canadian rules and observing Chinese practices, valuable insights can be gained for the global portfolio strategy of multinational brands.
01 The Form and Weight of Evidence Determine Success or Failure
In January 2026, the Canadian Intellectual Property Office amended its Practice Notice regarding the form of evidence submitted under subsection 32(1) of the Trademarks Act. The notice clarifies two key principles.
Firstly, evidence provided to the Registrar to establish that a trademark had acquired distinctiveness by the filing date should be submitted by way of affidavit or statutory declaration. This is the formal avenue explicitly recommended by the Office.
Secondly, the notice grants examiners significant discretion: the Registrar will not refuse to consider evidence not submitted by way of affidavit or statutory declaration. However, the "weight" of such informal evidence will be scrutinized.
The Registrar will decide whether to give the evidence full, partial, or no weight based on its credibility and probative value. Ultimately, the sum of weight accorded to all evidence will determine whether the applicant has successfully proven the trademark's distinctiveness.
In short, in Canada, the "form" of evidence influences its "weight", and the cumulative "weight" directly determines the outcome. This approach maintains procedural rigor while allowing flexibility based on the substance of the evidence.
02 Contrasting Practices: China Emphasizes Substance and Chain of Evidence
The practical logic reflected in China's relevant official guidelines shares similarities with, but also shows significant differences from, the Canadian approach.
Regarding the form of evidence, Chinese guidelines do not explicitly prioritize affidavits or statutory declarations like the Canadian notice does. The overarching emphasis is on the authenticity, relevance, and completeness of the evidence.
For example, when proving "a genuine intent to use" the trademark, the guidelines list dozens of evidence types, ranging from business plans and product development records to distribution agreements and advertising preparation materials. It clearly states that "a single piece of evidence usually needs to be combined with other evidence to enhance its probative force."
This indicates that Chinese examination practice focuses more on constructing a "chain of evidence" that can mutually corroborate and form a complete logical circle, rather than adhering rigidly to a specific form.
Regarding proving that a trademark "has acquired distinctiveness through use," the Chinese guidelines require a more systematic approach. Applicants need to comprehensively provide multi-dimensional materials such as sales evidence, promotional evidence, honors received, and industry reports. The guidelines explicitly point out that company honors or promotional materials not featuring the applied-for trademark are considered ineffective evidence.
This logic is essentially similar to the Canadian practice of evaluating "the cumulative weight of all the evidence" to determine if the standard of proof is met. Both require evidence to have not only "quantity" but also "quality," and to collectively point to a single conclusion.
03 Official Guidelines Differ, but High-Quality Evidence is the Common Language
Although the specific guidelines and emphasis differ between the two countries, the core requirement is consistent: applicants must submit high-quality, credible, and directly relevant evidence to support their claims.
In Canada, this means that even when using informal evidence, it is essential to ensure it is from a reliable source, has clear content, and strong probative value to secure the maximum possible weight. In China, it necessitates a greater investment of effort into the systematic organization and logical presentation of evidence to build an unassailable chain of evidence.
In the global business environment, brand owners may face examination requirements from different jurisdictions simultaneously. Understanding Canada's open weighing of evidence "weight" and China's pursuit of evidence "chain" perfection can help enterprises plan ahead and prepare registration strategies that meet the requirements of different regions. This enables more effective protection and utilization of trademark assets worldwide.
A trademark is not just a logo; it is a vital business asset. Rigorous and professional evidence preparation is the indispensable cornerstone for securing and maintaining that asset.
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