Please remember that this is not legal advice. The information provided herein is for instructional purposes only. If you'd like to get in touch with a Canada trademark lawyer to assist you with your application or trademark dispute, then you're encouraged to seek a professional.
In this text, I am going to be discussing some of the fundamental queries about emblems, together with what specifically could be a trademark, what is the Canadian logos database, do I've got to register a trademark, and what are the benefits of registering a trademark.
Definition
A trademark is a word, symbol or design, or a mixture of these, used to tell apart the goods or services of 1 person or organization from those of others within the marketplace.
There are three main kinds of Logos in Canada:
1. Normal Marks;
2. Certification Marks; and
3. Distinguishing Guise.
These sorts of Emblems can be mentioned briefly in turn.
Normal Marks
The Canada Trade-Marks Act defines an Normal Trademark as:
"a mark that is utilized by an individual for the aim of distinguishing or thus as to tell apart wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others,"
Thus a trademark is a word, symbol, image, or combination of these things used to distinguish a product (known as a "ware") or a service of one business from another that provides similar wares or services.
Certification Mark
A Certification Mark is outlined as follows:
"a mark that is used for the aim of distinguishing or thus as to tell apart wares or services that are of a defined standard with respect to
(a) the character or quality of the wares or services,
(b) the operating conditions underneath which the wares are produced or the services performed,
(c) the class of persons by whom the wares have been produced or the services performed, or
(d) the world within that the wares have been made or the services performed,
from wares or services that aren't of that defined commonplace;"
Therefore a Certification Mark merely identifies product or services that meet a outlined standard (e.g. wool mark). This type of trademark can be licensed or used with permission by different corporations to point bound standards.
Distinguish Guise
A Distinguishing Guise is outlined as follows:
"(a) a shaping of wares or their containers, or
(b) a mode of wrapping or packaging wares
the appearance of that is utilized by an individual for the aim of distinguishing or thus as to differentiate wares or services manufactured, sold, leased, employed or performed by him from those manufactured, sold, leased, employed or performed by others;"
Therefore a Distinguishing Guise identifies the distinctive form of a product or package (e.g. Coca-Cola bottle).
Trade name
Do not confuse a trademark with a "trade name", which is simply a reputation an organization registers to hold on business below that name. You'll often realize companies, maybe numbered companies like 123456 Ontario Inc. or 123457 Canada Ltd., carrying on business or c/o/b as "X" (here, "X" might mean "Pete's T-Shirt Look"). You will conjointly realize the term "operating as" being used. The idea behind the trade name is that a corporation may have a lousy corporate name and wish to use a industrial name instead. These things being said, the trade name must be registered, will not afford the corporation protection as would a trademark and, on contracts between the corporation and third parties, the total corporate name should be identified (e.g. Pete's T-Shirt Look c/o/b as 123456 Ontario Inc.). This is meant to shield the public therefore that they apprehend exactly who they're addressing - particularly, a company rather than a sole proprietorship, partnership, joint venture, association, etc.
Canadian Emblems Database
The Canadian Logos Database is the official database maintained by the Canadian Intellectual Property Office that presents regularly updated content regarding emblems in Canada. The database is a very versatile tool which will be searched using numerous keywords and fields. The results show info concerning the applicant, the standing of the application, the description of the wares and services and when they were first used, and also the action taken by the govt. (and even third parties) concerning the trademark.
Do I have to Register?
You're not needed to register a trademark in Canada. Many logos are established underneath common law (i.e. historical choose made law) on the idea that a party has been using the trademark for an extended time. However, you ought to carefully perceive and appreciate the advantages of doing therefore sooner rather than later, and the disadvantages of failing to try and do so.
Benefits to Registering a Trademark
Let's be clear here. Simply registering a trademark does not automatically mean that you will be able to use it for your specific wares and services to the exclusion of everybody else in Canada. There might be things where somebody has been using an unregistered trademark longer than you have got and, even if you have got registered it, you'll be needed to stop using it as a result of of the opposite party's common law rights (it depends on the circumstances of the actual matter).
In any event, registration is proof of ownership. As such, registration acts as both a robust shield and a sword against potential infringers.
The primary advantage to registering a trademark is that the direct evidentiary price that comes with registration. Registration is direct proof that you have been employing a trademark beginning from a sure amount of time. Registration requires a comprehensive review, which adds to your trademark's authority. Hence, you'll be able to purpose to registration in support of your use of the trademark through Canada for your explicit wares and services for the duration of the registration period (i.e. fifteen years). If infringers return around, then you may be able to bring an action against them and use your registration as proof to hunt damages and prevent them from using their trademark.
Disadvantages of Not Registering a Trademark
It's highly advisable to register your trademark whilst possible. Whether or not you don't register a trademark, you'll be able to still use it. The matter, however, might come back when a celebration anywhere else in Canada with similar wares and services registers a trademark that's kind of like the one you're using. The result may be that a choose may order you to stop using that similar or confusing Trademark on the premise that somebody else registered it 1st (i.e. back to the evidentiary nature of registering a trademark).
Author Resource:
Adam has been writing articles online for nearly 2 years now. Not only does this author specialize in Trademark Law in Canada (Part 1)
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