Understanding Trademark Infringement in Canada: Part 1
Trademark protection is available for certain symbols, words, names, and devices that will be used in connection with a service or product. A trademark may be used to identify both goods and services of a single entity. The purpose of a trademark is to enable companies and individuals to distinguish themselves from their competitors.
In Canada, trademark protection exists under common law and legislation. This means that there are actions one can take if a trademark infringement occurs, even if the business has not officially registered their trademark. Trademarks provide protection across Canada. For a product, the best practice is to place the mark on the packaging or product itself. For a service, the mark can be used in advertising and marketing efforts.
What Is Considered Trademark Infringement?
For the uninitiated, determining an infringement can be a bit difficult. While most companies and businesses have the foresight to not pass a product or service very similar to a competitor, a lawyer may be able to provide further insight into what constitutes trademark infringement. The common law tort in Canada defines "passing off" of as existing goodwill or a distinctive reputation of a business concerning a particular service or product attempting to actively deceive the public via misrepresentation.
However, there are certain forms of "passing off" that might seem dubious from the outside but are entirely accepted by common law. Under common law, it is acceptable to have the same trademark as another company, as long as it is for a different service or product where the use of both companies is unlikely to cause confusion for potential consumers.
Here's an example to consider:A clothing company has a particular brand that they place on all of their products. It is possible for a tire company to use the same trademark in association with their tires as consumers are unlikely to associate the goods as coming from a single source.
Prior to launching or applying for your trademark, you can utilize the database from CIPO to search for registered trademarks and applications filed in Canada to see if your trademark or a similar trademark is already registered. If you have questions about the process, you can schedule a free consultation with our team in Edmonton by clicking here.