Do I Need Registered Protection for My Intellectual Property?
The answer to this question is completely dependent on the type of intellectual property you are talking about and your reasons for looking to protect it. There are some common law rights that are associated with both trademarks and copyright. That means, the simple act of using a specific word, phrase or logo as a trademark (?) or writing a poem provides you with some protection in the event others try to use the same trademark or steal your work. On the other hand, there are absolutely no common law rights when it comes to your invention. If you fail to file a patent application or an industrial design then your invention will not be protected. That’s the simple answer. So, if you want to protect your invention, you must file a patent application. But since you already have some protection of trademarks and copyright without paying to register them, why do people bother to pay to have them registered?
When it comes to trademarks, there are a number of reasons a person or company would choose to file for trademark protection. Perhaps the most important reason is that a registered trademark gives you the exclusive right to use the trademark in association with your goods and services across Canada and gives you the right to sue for infringement of your trademark. If your trademark is not registered, you can commence a passing off action, but an infringement action is only available to people with registered trademarks. In addition, in the event of trial, your trademark registration is evidence of your ownership of the trademark. Another reason is that you can file for a trademark based on proposed use. By filing based upon proposed use, your trademark will go through examination to determine if there is any confusion with registered marks and others will be able to see your proposed mark and enter opposition proceedings if they feel their rights are being violated. This can save you money on branding since most obstacles will be dealt with during the registration process. As an aside, it is important to know that receiving a trademark registration does not automatically guarantee that you are not violating someone else’s trademark rights.A party with an unregistered trademark and prior use has rights to their trademark and can have a trademark registration expunged if it impedes on their rights. Unfortunately, an unregistered mark will not be cited against your proposed mark during examination.
What about copyright? Well, copyright protection is automatic. The moment you create a song or story or painting, etc. you have copyright protection. The benefit of registration of your copyright material is that you are provided with a certificate of registration of copyright that can be used as evidence that copyright exists and that you own it.