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A trade-mark is worth much more than the word, image or slogan
embodied in it. It serves to distinguish a business and is integral
to its reputation. The choice of a trade-mark is the result of
strategic planning and effort and reflects the philosophy advocated
by the business, hence the importance of protecting it. Although
the right of ownership in a trade-mark is acquired through the use
thereof, and registration is not mandatory, a registered trade-mark
has undeniable benefits for a business.
Registration gives the owner the exclusive right to use the
trade-mark throughout Canada for a period of 15 years, even if, in
practice, the trade-mark is solely used in Quebec. Thereafter,
registration can be renewed indefinitely every 15 years.
Furthermore, registration is a direct proof of the right of
ownership. Thus, in any litigation aimed at establishing the right
of ownership in a trade-mark, the registered owner is not required
to prove his right the burden of proof is on the applicant. On the
other hand, the use of an unregistered trade-mark can lead to
protracted litigation to determine the rights to the disputed
trade-mark.
Upon registration, the trade-mark is automatically entered in
the register of trademarks at the Canadian Intellectual Property
Office ("CIPo"), which is a way of
publicizing the exclusive rights claimed in the trade-mark. Not
only is this register accessible to the public, but CIPO examiners
also refer to this tool when considering any new trade-mark
registration application. Thus, the examiner will raise an
objection, of his own motion, against a new application if it is
likely to cause confusion with a trade-mark already on the
register, thereby providing a degree of protection for existing
registered trade-mark owners.
Trade-marks are one of the most important assets of a business
from an economic standpoint, and the registration is valuable in
itself for purposes of the sale of a business or when seeking
financing.
While registration is optional, it is highly recommended. The
process is not costly or tedious and is undoubtedly the best way to
avoid litigation over the right of ownership to the trade-mark. An
ounce of prevention is worth a pound of cure!
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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