While we all hear the word "brand" tossed around as representing the word or logo that makes us remember a product line (think of ROOTS for shoes, bags and footwear) or offers a service (think of the AIRMILES & Airplane design for an air mileage incentives program), a brand is actually, in legal terms, a "trade-mark", that is, a word, design, or combination of word and design specifically chosen by a person or entity to distinguish their product or service from similar products or services offered by others.
In Canada, the rights created through the choice – or "adoption" as it is formally known – to use a trade mark are set out in a federal statute called the Trade-marks Act. Fundamental to the recognition of a trade-mark and enforcement of the rights in a trade mark, is the concept of "use".
Use of a trade mark for products means the sale of products inside Canada, or by way of export from Canada, where the products or their packaging bear the trade-mark. That is, a consumer can see the trade-mark on the product or its packaging when purchasing the product, including when the product is received through later delivery. For example, a person seeking a specific type of ballpoint pen in a stationery store will look for the trade-mark for the pen, in amongst all of the pens offered by multiple manufacturers under different brands. Once the desired brand of pen is found, the person purchases the pen and "use" of the trade-mark for the pen has occurred. Or, a person seeking to order a certain type of jeans online can sort through the various brands of jeans on the website of a clothing retailer to the select those desired, and place the order for those jeans, thus, beginning a chain of activity that will result in "use" of the trade mark for those jeans upon delivery of them to the customer.
Use of a trade-mark for services means that the services are available for access by potential customers and are being promoted or advertised to those potential customers in a way that highlights the trade-mark. For example, when a person walks down a street with multiple restaurants hoping for their custom, the signs bearing the names of the restaurants are the "use" of those restaurant names as trade-marks..
All of the above holds true for non-profits in Canada, whether they are registered charities or not. A trade-mark that only appears on internal documents, such as a non-profit's letterhead is unlikely to be found to be in use under Canadian law. It is important that non-profits not assume that they are subject to a different interpretation of trade-mark law in Canada than would be a case for a commercial business. The Canadian Trade-marks Act makes no such distinction.
So, when it comes to your non-profit brand, use it or lose it!
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