Trademark Law in Canada Introduction
By: kenneth gibbs | Posted: 23rd November 2010
Trademark Law in Canada: Part 1 - Introduction.
Please acknowledge that this is not legal advice. The information specified herein is for comprehension only. If you desire to reach a Canada trademark lawyer to aid you with your application or trademark battle, then feel free to email Toronto Lawyer Michael Carabash at michael@dynamiclawyers.com to discuss all your distinctive labels needs!
In this blog, I'll be talking about the primary inquisitions about trademarks, including what exactly is a trademark, what is the Canadian trademarks database, am I required to register a trademark, and what are the advantages of a trademark registration.
Description
A trademark is a concept, symbol or design, or a union of all three, used to classify the goods or services of one person or organization from those of others in the marketplace.
There are three necessary kinds of Trademarks in Canada:
1. Ordinary Marks;
2. Certification Marks; and
3. Distinguishing Guise.
Those will be explained below:.
Ordinary Marks
The Canada Trade-Marks Act marks an Ordinary Trademark as:
a mark that is applied by a person for the purpose ofconsidering or so as to characterize wares or services assembled, sold, leased, hired or performed by him from those produced,sold, appointed chartered loaned, hired or depicted by others,
So a trademark is a word, mark, portrait, or combination of these things utilized to differentiate a product (called a "ware") or a service of one business from another that offers parallel wares or services.
Certification Mark
A Certification Mark is defined as follows:
a mark that is employed for the intention of separating or so as to distinguish wares or services that are of a encircled average with respect to
(a) the character or excellence of the wares or services,
(b) the working aspectsunder which the wares have been erected or the servicesenacted,
(c) the class of persons by whom the wares have been produced or the services executed, or
(d) the area within which the material have been produced or the services carried out,
from {wares|goods|articles|commodities|products|merchandise for sale] or services that are not of that defined standard;
So a Certification Mark simply checks out products or services that meet a precise records to carry on business under that name. You'll often find corporations, perhaps numbered corporations like 123456 Ontario Inc. or 123457 Canada Ltd., carrying on business or c/o/b as "X" (here, "X" could mean "Pete's T-Shirt Shop"). You'll also make out the term "operating as" being used. The idea behind the trade name is that a corporation may have a terrible corporate name and want to use a commercial name preferably. These things being said, the trade name must be registered, does not afford the corporation protection as would a trademark and, on contracts between the corporation and third parties, the full corporate name must be identifyd (e.g. Pete's T-Shirt Shop c/o/b as 123456 Ontario Inc.). This is meant to secure the public so that they know absolutely who they're dealing with - namely, a corporation instead of a sole proprietorship, partnership, joint venture, association, etc.
Canadian Trademarks Database
The Canadian Trademarks Database is the valid database cared for the Canadian Intellectual Property Office which presents regularly updated content about trademarks in Canada. The database is a very flexible tool that can be searched using various keywords and fields. The results display information concerning the applicant, the status of the application, the description of the wares and services and when they were first used, and the action taken by the government (and even third parties) concerning the trademark.
Must I Register
It is not necessary to register a trademark in Canada. Many trademarks are set up under common law (i.e. historical judge made law) on the basis that a party has been using the trademark for a long time. However, you should delicately recognize and appreciate the advantages of doing so sooner rather than later, and the disadvantages of failing to do so.
Advantages to Registering a Trademark
Let's be clear here. Simply registering a trademark doesn't automatically mean that you will be able to use it for your distinguished wares and services to the elimination of everyone else in Canada. There could be conditions where someone has been using an unregistered trademark longer than you have and, even if you have registered it, you may be required to stop using it because of the other party's common law rights (it depends on the circumstances of the notable matter).
Anyway, registration is proof of ownership. As such, registration acts as both a powerful shield and a sword against potential inf ringers.
The initial advantage to registering a trademark is the direct evidential value that comes with registration. Registration is direct evidence that you have been using a trademark beginning from a certain period of time. Registration requires a comprehensive review, which adds to your trademark's authority. Hence, you will be able to point to registration in support of your use of the trademark through Canada for your specific wares and services the duration of the registration period (i.e 15yrs). If inf ringers come around, you'll be able to bring an action against them and use your registration as attestation to look for damages and avert them from using their trademark.
Disadvantages of Not Registering a Trademark
It is so much advisable to register your trademark promptly. Even if you don't register a trademark, you still can use it. The issue nevertheless, may come when a party anywhere else in Canada with collateral wares and services registers a trademark that is similar to the one you are using. The result may be that a judge may order you to stop using that similar or confusing trademark on the basis that someone else registered it first (i.e. back to the evidential nature of registering a trademark.
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