Canada: Trademarks Comparative Guide

Last Updated: April 9 2019
Article by Neil Melliship
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1 Legal framework

1.1 What is the statutory or other source of trademark rights?

Trademark rights in Canada find roots both in the federal Trade-marks Act and the common law. Trademark rights are regulated by the act, as well as related competition and criminal legislation.

Substantive amendments to the act will come into force on 17 June 2019; given their expansive nature, those will be discussed in a future revised version of this Q&A.

While provincial laws and courts also impact on trademark rights, there is no separate system of provincial protection for trademarks in Canada.

Trademarks existing in Newfoundland before 1 April 1949 are governed according to the separate provincial laws of Newfoundland, which are not discussed here due to their limited application.

1.2 How do trademark rights arise (ie, through use or registration)?

Trademark rights arise through one of the following ways:

  • without registration, through use of a mark in the normal course of trade in any part of Canada in connection with specific goods or services;
  • through federal registration of a mark in Canada on the basis of use of that mark in the normal course of trade in any part of Canada in connection with specific goods or services;
  • through federal registration of a mark in Canada on the basis of use and registration of that mark in a foreign jurisdiction; or
  • through federal registration of a mark in Canada on the basis that the mark has been "made known" in Canada through use not otherwise qualifying under the first and second points above.

Under the second route above, rights do not arise and registered rights will not be granted until the owner has actually made use of its mark in the normal course of trade at least somewhere in Canada. A registration will provide exclusive protection for that mark across all of Canada, even if the mark has been used in one part of Canada only. Conversely use without registration will provide protection only across the specific territory where the mark has accrued goodwill and reputation.

Under the third route, for purposes of obtaining a registration, the owner is not required to make use of the mark in the normal course of trade in Canada, but it must first use and register the mark in a foreign jurisdiction. Moreover, failure to commence use of the registered mark in the normal course of trade in Canada within three years of registration will result in the registration becoming vulnerable to challenge on grounds of non-use.

Registration via the fourth route is rare, as it is more difficult to establish from an evidentiary perspective. Applicants wishing to obtain registration on this basis must include in the application:

  • the date that the mark was first made known in Canada;
  • the name of a Union country, if any, in which the mark has been used; and
  • the manner in which the mark has become well known in Canada.

1.3 What is the statutory or other source of the trademark registration scheme?

The source of the trademark registration scheme is the Trade-marks Act and the Trade-mark Regulations made under the act.

2 What constitutes a trademark?

2.1 What types of designations or other identifiers may serve as trademarks under the law?

Canadian law provides protection for the following marks:

  • regular marks consisting of a word, name, letter, numeral, figurative element (eg, a two-dimensional design, symbol/sign or logo, or a two-dimensional design applied to a three-dimensional object), or combinations thereof;
  • certain non-traditional marks, including sound, motion, hologram and colour applied to the surface of a specific object (eg, purple as applied to a surface of polyurethane spray foam);
  • distinguishing guises, consisting of the unique shapes of goods or of packaging for goods (eg, a Coca-Cola bottle). Distinguishing guises are subject to additional registrability requirements, including that the distinguishing guise has become distinctive in Canada through the applicant's use, and that granting registration will not unreasonably limit development of any art or industry;
  • certification marks, which are owned by a standard-setting body and used by third parties, intended to confirm that goods and services provided thereunder conform to such standards; and
  • an extensive list of prohibited marks, as specified in Section 9 of the act, including royal arms, crests or standards, flags of certain nations, including Canada, and any badge, crest, emblem or mark of any university or adopted and used by any public authority in Canada as an official mark for goods or services.

Geographical indications are protected under a separate scheme and are subject to separate requirements under the act.

2.2 What are the requirements for a designation or other identifier to function as a trademark?

In general, under common law and the Trade-marks Act, marks must be capable of distinguishing goods or services manufactured, sold, leased, hired or performed by the mark's owner from those manufactured, sold, leased, hired or performed by others.

Specific bars to registration are discussed below under question 2.3.

2.3 What types of designations or other identifiers are ineligible to function as trademarks?

Historically, the Canadian Intellectual Property Office (CIPO) has not readily granted trademark protection to non-traditional trademarks and they are not expressly provided for in the act. CIPO has typically refused registration of these marks, primarily on the grounds that they cannot function as ‘marks' under the act and/or be represented on the Trademark Register. However, registration of these marks is sometimes possible: for example, sound marks have been registered in the form of sound graphs or musical notes, and colour marks have been registered as applied to a particular surface of an object.

The amended act will provide explicit protections for non-traditional marks, including sound marks, colour marks not tied to a particular size or shape, scent marks, taste marks and texture marks.

3 Registration procedure

3.1 Which governing body (ie, trademark office) controls the registration process?

The Canadian Intellectual Property Office (CIPO), a special government body responsible for the administration of copyright, patent and trademark rights in Canada, and which includes the Office of the Registrar of Trade-marks, has control over registration procedures.

3.2 What fees does the trademark office charge for an application, during prosecution and for issuance of a registration?

For electronic applications, CIPO charges a flat filing fee of C$250 for each application, regardless of how many goods and services are covered. Paper applications are C$300. After the application is allowed, CIPO also charges a registration fee of C$200 before a registration will issue.

During prosecution, CIPO does not charge fees for filing declarations of use or responses to office actions (called ‘examiner's reports'). However, extensions of time to file declarations of use are C$125 each. Additionally, if the applicant is required to provide a certified copy of a foreign registration, the cost for filing this document is C$50.

3.3 Does the trademark office use the Nice Classification scheme?

Currently, goods and services can but need not be grouped according to the Nice Classification scheme for purposes of filing or registration in Canada.

The amended Trade-marks Act will require that all applications filed after 17 June 2019 group goods and services according to the Nice Classification scheme. In anticipation of these amendments coming into force, the registrar has been allowing applicants and registrants to group their goods and services according to the Nice Classification scheme on a purely voluntary basis.

3.4 Are ‘class-wide' applications allowed, or must the applicant identify the specific goods or services for which the mark will be used?

‘Class-wide' applications are not allowed, and each applicant must identify specific goods and services in commercially ordinary terms. CIPO has published a manual of acceptable goods and services; it is accessible online via www.ic.gc.ca/app/scr/ic/cgs/ext/home.html.

3.5 Must an applicant have a bona fide intention to use the trademark for the goods or services identified in the application in order to apply for registration?

Not necessarily. If the applicant files an application on the basis of proposed use in Canada, it must include a statement that the applicant, by itself and/or through a licensee, intends to use the trademark in Canada. If the applicant files on the basis of use and registration abroad, it need not include such a statement.

In any case, however, an application must include a statement that the applicant is satisfied that it is entitled to use the trademark in Canada in association with the goods or services described in the application. Oppositions against registration of a mark may be filed on the basis that the applicant did not believe or had no basis to believe it was entitled to use the mark.

3.6 Does the trademark office perform relative examination of trademark applications (ie, searches for earlier conflicting marks)?

Yes, CIPO conducts a search of the Trademarks Register for prior-filed applications and registrations as well as ‘prohibited marks' (ie, marks afforded special protection under the act), and performs a relative examination. An application will be refused registration if it is found to be identical or confusingly similar to any mark or marks that are the subject of a prior application or registration. Prohibited marks are generally held to a different standard of similarity, meaning that an applied-for mark could also be refused if it were "consisting of, or so nearly resembling as to be likely to be mistaken for" a prohibited mark, regardless of other confusion factors considered in connection with other marks.

3.7 What types of examinations does the trademark office perform other than relative examination?

CIPO also performs examination on absolute grounds, which are discussed further below in response to question 3.8.

3.8 Apart from confusion with a senior mark, descriptiveness and genericness, are there other grounds under which a mark is ineligible for registration, such as public policy reasons?

Yes, trademarks are also ineligible for registration if they are or consist of any of the following:

  • primarily merely the name or surname of an individual who is living or has died within the preceding 30 years;
  • matter which consists of, or so nearly resembles as to be likely to be mistaken for, a prohibited mark, including royal arms, crests, standards, flags, ‘official marks' of public authorities and universities, matter suggesting a false connection to actual individuals and insignia of various organisations;
  • scandalous, obscene or immoral matter;
  • denominations that are protected as plant variety names;
  • geographical indications identifying a wine, spirit, agricultural product or food; and
  • terms protected under the Olympic and Paralympic Act.

With respect to refusal on grounds of descriptiveness, trademarks may be denied protection if they mislead the public as to:

  • the character, quality, quantity or composition of the goods or services;
  • the geographical origin of the goods or services; or
  • the mode of manufacture, production or performance of the goods or services.

For purposes of assessing descriptiveness of an applied-for mark and confusion between marks, English and French terms are considered to be equal. Further, a mark may be refused registration on grounds of lack of distinctiveness if it is the name in any language of any of the goods and services in connection with which it is used or proposed to be used.

3.9 Is there a separate or supplemental register on which descriptive marks may be registered?

No. However, it is worth noting that descriptiveness refusals may be overcome through one of the following mechanisms in the act:

  • where an applicant can show that the mark has been registered in the applicant's country of origin and is not without distinctive character in Canada, having regard to all circumstances, including the length of time for which the mark has been used anywhere; or
  • where the applicant can demonstrate that its mark has been used across Canada (typically in all provinces) and has acquired distinctiveness as a result thereof.

3.10 Can a third party object to registration of a mark before the application has been published (eg, by letter of protest to the trademark office)?

No, although this will change under the amended act.

3.11 Must the applicant use the trademark commercially in order to obtain a registration?

Yes, although not necessarily in Canada. If the applicant files an application on the basis of proposed use in Canada, then the applicant must file a declaration of use confirming that use of the mark in the normal course of trade in Canada has commenced before a registration will issue. However, if the applicant files an application on the basis of use and registration abroad, the applicant must have commenced use in the foreign jurisdiction where the mark is registered. Similarly, an application filed on the basis that the mark has been ‘made known' in Canada will depend on some use of the mark within and/or outside Canada.

3.12 How much time does it typically take from filing an application to the first office action?

It takes about 12 months for the first office action to issue. If any objections are raised, the applicant will thereafter have six months to respond, although a six-month extension is available as of right, with further six-month extensions available in certain circumstances.

3.13 How much time does it typically take from filing an application to publication?

On average, most applications receive examiner's reports, which often entail several months for response and further review by CIPO. Accordingly, in most cases, it will take about 28 months from the time an application is filed to publication (assuming that all of the examiner's objections can be overcome).

In the rare case where no examiner's reports are issued, an application can proceed to publication in about 12 months.

4 Appeals

4.1 If the trademark office refuses registration, can the applicant appeal? If so, to what body and by what procedure?

Final decisions of the registrar may be appealed to the Federal Court of Canada within two months of notice of the decision.

4.2 What is the procedure for appealing a trademark office refusal?

An appeal must be filed by way of a notice of application with the Federal Court of Canada, and takes the form of a judicial review of a decision of the registrar. Where the appeal could affect another person, such as an appeal of a decision of the Trademarks Opposition Board (TMOB), the other person must be named as a respondent. Where there is no other party to the decision, such as a final refusal issued by the registrar, the proper respondent is the attorney general of Canada.

The appeal must be served on the registrar, and the appellant often elects to serve the registrar with a request to provide any relevant material in the possession of the TMOB. The appellant must also send a copy of the notice of application to the registered owner of any trademark referred to by the registrar in the decision under appeal, as well as any other person that was entitled to notice of the decision.

The appeal then proceeds in Federal Court based on the written record and can include an oral hearing. Unlike many applications for judicial review, the parties may file fresh evidence which was not before the registrar at first instance.

4.3 Can the reviewing body's decision be appealed? If so, to what body and by what procedure?

The Federal Court's decision may be appealed to the Federal Court of Appeal of Canada. In rare circumstances, a decision of the Federal Court of Appeal may be appealed to the Supreme Court of Canada, but only if the Supreme Court grants the appellant leave to appeal.

5 Oppositions

5.1 Can a third party oppose a trademark application?

Yes.

5.2 Who has standing to oppose a trademark application?

Any person may file a statement of opposition, provided that it is founded upon one of the following accepted opposition grounds:

  • the application does not meet the formal requirements of the act;
  • the trademark is not registrable;
  • the applicant is not the person entitled to registration of the trademark; or
  • the trademark is not distinctive.

5.3 What is the timeframe for opposing a trademark application?

The statement of opposition must be filed within two months of the advertisement of the trademark application. However, it is possible to obtain a three-month extension of time to file the opposition without consent of the applicant.

5.4 Which body hears oppositions?

Oppositions are heard by the TMOB, which manages the proceedings on behalf of the registrar, who issues a final decision.

5.5 What is the process by which an opposition proceeds?

Any party may file a statement of opposition, along with the prescribed fee, within two months of advertisement (or five months, if an extension has been obtained). The statement must set out the name and address of the opponent and the grounds of opposition, in sufficient detail to enable the applicant to reply.

If the registrar considers that the opposition does not raise a substantial issue for decision, the registrar shall reject it and give notice of this decision to the opponent. If it does raise an issue, the registrar shall forward a copy of the statement to the applicant.

The applicant has two months to file a counterstatement. Thereafter, both parties shall be given an opportunity to submit evidence and make written and oral representations to the registrar, unless the opposition is withdrawn or the application is abandoned.

5.6 Can the decision on the opposition be appealed? If so, to what body and by what procedure?

Final decisions of the registrar may be appealed to Federal Court within two months of notice of the decision.

6 Rights of registered and unregistered marks

6.1 What, if any, protection is afforded to unregistered trademarks?

Use of a trademark in connection with specific goods and services in a specific geographic region of Canada provides the owner with rights to prevent third parties from using the same or confusingly similar marks in connection with the same or similar goods and services in that same region. Specifically, owners of unregistered trademarks can bring actions for passing off under common law or the codified version of this action in the Trade-marks Act. Passing off requires the owner to prove three elements:

  • the existence of goodwill or reputation based on use of the mark by the plaintiff;
  • a likelihood that the public will be deceived due to a misrepresentation by the defendant; and
  • actual or potential damage to the plaintiff.

Moreover, owners of unregistered marks or marks that have been ‘made known' in Canada can oppose registration of a confusingly similar mark by a later user on the basis of their prior rights.

6.2 What legal rights are conferred by a trademark registration?

Registrations expand upon the rights available to owners of unregistered marks. Some important distinctions are below:

  • registered mark owners are entitled to exclusive use across all of Canada, not just the area in which they can prove use and reputation;
  • registrations provide constructive notice of trademark rights to third parties;
  • registrations provide prima facie evidence of trademark ownership rights;
  • registrations provide an absolute defence, subject to their validity, against certain actions for infringement or passing off, or violations of French translation requirements in Quebec (unless a French version of the mark is also registered); and
  • registered mark owners have a right of action to remedy any infringement against a person that uses an identical or confusingly similar mark in connection with similar goods or services.

6.3 If there is a separate register for descriptive marks, what legal rights are conferred by registration therein?

There is no separate register.

7 Enforcement and remedies for trademark infringement

7.1 What remedies are available against trademark infringement?

For violations of the Trade-marks Act, including infringement of registered trademarks and passing off with respect to registered and unregistered trademarks, the court may make any order that it considers appropriate, including relief by way of injunction and the recovery of damages or profits, punitive damages and the destruction or other disposition of any offending goods, packaging, labels and advertising material, and of any equipment used to produce the goods, packaging, labels or advertising material.

7.2 What remedies are available against trademark dilution?

There are no specific remedies available against trademark dilution, but the act offers similar protection against depreciation of goodwill. Court decisions have made this remedy available in only limited situations, requiring all the following elements:

  • a third party uses a mark which is identical to the prior mark, in a trademark manner (i.e., applied to goods or services);
  • the registered mark is sufficiently well known and has substantial goodwill; and
  • such third-party use is likely to affect the goodwill by depreciating its value.

7.3 Does the law recognise remedies against other harms to trademark rights besides infringement and dilution?

The law also provides remedies against the following:

  • making false or misleading statements tending to discredit the business, goods or services of another;
  • directing public attention to one's goods, services or businesses in such a way that causes or is likely to cause confusion in Canada;
  • passing off other goods or services for those ordered or requested; and
  • making use, in association with goods or services, of any description that is false in a material respect and likely to mislead the public as to:
    • the character, quality or composition of the goods or services;
    • the geographical origin of the goods or services; or
    • the mode of the manufacture, production or performance of the goods or services.

7.4 What is the procedure for pursuing claims for trademark infringement?

Trademark owners that wish to pursue a claim for infringement or other violations of the Trade-marks Act must do so through formal proceedings brought in either the Federal Court of Canada or a provincial superior court. In the Federal Court, parties can proceed in one of two ways:

  • by filing a statement of claim to commence an action; or
  • by filing a notice of application, which is a summary procedure based on a written record.

Trademark owners can also file applications seeking court orders for interim custody of infringing goods or detention of imports by the minister of public, safety and emergency preparedness.

Trademark owners may also pursue a claim for common law passing off before a provincial superior court.

7.5 What typical defences are available to a defendant in trademark litigation?

Defendants can raise the following defences:

  • if the plaintiff is relying on registered trademark rights, defendants can seek to invalidate the underlying trademark registration on grounds that:
    • the mark was not registrable at the date of registration;
    • the mark is not distinctive at the time proceedings bringing validity of the registration into question are commenced;
    • the mark has been abandoned; or
    • the applicant for registration was not the person entitled to secure the registration.

Proceedings to invalidate a registration must be brought in Federal Court.

  • the defendant may claim loss of rights at common law through one of the following ways:
    • loss of distinctiveness (ie, if the trademark is not exclusively associated with the plaintiff); or
    • abandonment by the mark's owner.
  • the defendant may also be able to rely on fraudulent activity by the plaintiff. Under common law, courts will not protect a plaintiff that is using a fraudulent mark or is using the mark in fraudulent practices.

7.6 What is the procedure for appealing a decision in trademark litigation?

The Federal Court's decision may be appealed to the Federal Court of Appeal. In rare circumstances, a decision of that court may be appealed to the Supreme Court of Canada, but only if the Supreme Court grants the appellant leave to do so.

A decision of a provincial superior court can be appealed to that province's court of appeal. In rare circumstances, an appeal of a decision of a provincial court of appeal may also be sought in the Supreme Court of Canada, subject to the aforementioned leave requirements.

8 Maintenance and removal of registrations

8.1 What is the length of the initial term of registration and what is the length of renewal terms?

The initial term and renewal term are 15 years each.

8.2 What, if anything, must be submitted to the trademark office to maintain or renew a registration?

To renew a registration, a fee must be paid before expiration of the renewal term or within six months of receiving notice from the registrar.

8.3 What are the grounds for cancelling a trademark registration?

In Federal Court, the validity of a registration may be challenged on the following grounds:

  • the mark was not registrable at the date of registration;
  • the mark is not distinctive at the time of proceedings;
  • the mark has been abandoned; or
  • the applicant was not the person entitled to secure the registration.

Additionally, through summary expungement proceedings before the CIPO, a registration is liable to be expunged or amended to have goods or services not in use struck from the registration if the mark has not been used in Canada within the prior three years.

8.4 Under what circumstances may the trademark office cancel a registration on its own initiative?

Although extremely rare in practice, the registrar is statutorily empowered to require, at any time, the registered owner of a trademark to furnish evidence of use of that mark in Canada within the prior three years, within three months of written notice.

8.5 What is the procedure by which a third party may seek cancellation of a trademark registration?

To seek cancellation of a registered mark on one of the grounds listed in question 8.3, a claimant must commence a proceeding in the Federal Court of Canada.

In contrast, to initiate a summary expungement proceeding before CIPO, any person that makes a written request and pays the prescribed fee can ask the registrar to demand that a registered trademark owner furnish evidence of use of its mark. If insufficient or no evidence is provided to confirm that the mark was used in Canada at any time during the three-year period immediately preceding the request, and the owner is unable to explain special circumstances excusing non-use, then the registration will be expunged from the register.

8.6 What is the procedure for appealing a decision cancelling a registration?

To appeal decisions against cancellation proceedings in court or summary expungement proceedings before CIPO, the trademark owner or the party seeking cancellation may appeal the final decision of the registrar to Federal Court within two months of notice of the decision.

9 Licensing

9.1 Are there particular requirements, such as quality control by the licensor, for a trademark licence to be valid?

A licence agreement may be written or unwritten. In either case, however, the licensor must retain some control over quality. More specifically, an owner must have, under the licence, direct or indirect control over the character or quality of the goods or services.

Where a written licence agreement expressly provides the licensor with rights of inspection and control over quality, courts will typically presume that the licence is valid without evidence of the licensor exercising such rights, unless there is clear evidence to the contrary. If the licence is unwritten, courts are more likely to require evidence of inspections and/or actual control.

Providing public notice of a licence to consumers is purely voluntary. However, if the user provides public notice that the mark is licensed and gives the identity of the mark's owner, a rebuttable presumption arises that the owner controls the character or quality of the goods and services.

9.2 Must trademark licences be recorded with the trademark office or other governing body?

It is possible to record a licence for a registered mark, but it is not necessary to do so.

9.3 Can a licensor lose its rights in a trademark by failing to comply with its obligations under the licence, such as maintaining quality control?

A licensor may lose its rights in a trademark by failing to maintain control over the character or quality of the licensee's goods and services.

10 Protection of foreign trademarks

10.1 Under what circumstances may foreign trademarks not registered in the jurisdiction be enforced (eg, under unfair competition law)?

While statutory law in Canada does not specifically provide for protection of foreign trademarks, Canadian courts have allowed foreign companies to bring actions for passing off on the basis that they have some goodwill to protect in Canada, even if they do not do business in the country.

To bring an action on this basis, the company must provide evidence of its reputation in Canada, specifically showing that the mark has become ‘well known' throughout Canada, primarily by virtue of advertising. Specific damage to the plaintiff and an intent to do business in the jurisdiction are not necessary, but may impact on the remedies available. Bad faith on the part of the defendant is not required, but may influence the outcome.

10.2 Does the trademark office permit registration of a mark based on a foreign or international (Madrid) registration?

A party may seek registration of its mark in Canada on the basis that the mark is used and registered abroad, as discussed above under question 1.2.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Neil Melliship
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Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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