Following a recent practice note published by the Canadian Intellectual Property Office (CIPO), parties to a proceeding before the Trademarks Opposition Board (TMOB) are now required to include a declaration in the first paragraph of any document submitted to the TMOB that contains AI-generated content. This declaration is mandatory if the individual is party to a TMOB proceeding under:
- s. 11.13 (geographical indication objections),
- s. 38 (trademark application oppositions), or
- s. 45 (proof of trademark use requests) of the Trademarks Act.
The language required to be included in the declaration is as follows:
“Artificial intelligence (AI) was used to generate content in this document. All content generated by AI, and the authenticity of all authorities cited in this document, has been reviewed and verified by the [include the name of the party to the proceeding], or their trademark agent.”
Parties then have the option to describe how or where AI was used within the relevant document.
Examples of what the TMOB would or would not consider to be AI use are outlined in the practice note which can be found here. For instance, drafting generated using AI and legal authorities identified by AI would constitute AI use and necessitate inclusion of the declaration. By contrast, use of document editing tools with AI embedded, voice recognition or speech-to-text software would not constitute AI use for the TMOB’s purposes.
A failure to provide a declaration when it is required or submitting a false declaration could result in a costs award.
The aim of the practice note seems to be to ensure transparency, allowing the TMOB to be more discerning in evaluating submissions that rely on AI-generated content rather than prohibiting its use. As such, parties and their trademark agents should review their drafting practices and ensure that any use of generative AI in TMOB submissions under sections 11.13, 38 and 45 of the Trademarks Act is properly declared.
