When is Use actually Use?
You might think that the term “use” is simple and straight forward, especially considering that the dictionary defines it as “the action of using something”. But, when it comes to trademarks, it’s not always simple. When discussing use in relation to a trademark, it is not enough to slap your brand name on something and call it use of the trademark. Use of a trademark only occurs when it is in the normal course of trade. What exactly does this mean? Well, usually (but not always) use of a trademark is said to occur when goods are bought and sold or when services are advertised and can be performed in Canada.
I’ll give you an example of where “use” is not deemed to be use of a trademark: a trademark is associated with promotional items such as pens, key chains and ball caps that are handed out by a marketing company.In this scenario there is no use since providing free items to promote different types of services is not within the normal course of trade. These companies don’t sell these items, in fact, these items are used simply for promoting their services. But what if the company was a pen manufacturer? Would giving out free samples of their product to promote their product be considered use? The answer is yes, if the company did sell these items and also gave away free samples in an effort to increase their sales, then giving away the free samples to boost the sales of the same goods would be considered use of the trademark.
When it comes to “use” and trademarks, it is important to ensure that you are actually using your mark for the goods and services in your registration. A trademark agent should be able to answer any questions you may have with regards to whether or not you are actually using your trademark.