A brand, whether used by a person, company or non-profit is
really a trade-mark. In Canada, trade-mark rights are
governed by the Canadian Trade-marks Act.
The Trade-marks Act includes a licensing provision, that is, a
law which allows a trade-mark owner to permit others to make
use of the owner's trade-mark(s). The flip side of
this law is, however, that if a trade-mark owner allows others to
make use of the owner's mark(s) without regard to the licensing
requirements in the Trade-marks Act, rights in the trade-mark can
So what rights are at stake? First, the right of the
owner to the exclusive use, in Canada, of the trade-mark in
association with the goods or services offered under that mark in
the marketplace. If the owner has registered the trade-mark,
that right of exclusive use is generally throughout Canada.
In the case of a mark used at common law (that is, use in Canada
but no registration), the area of exclusive use may be limited
Next, is the right to enforce the exclusive rights.
If the owner has improperly allowed others to make use of its mark
and the owner needs to reverse that improperly allowed use or stop
yet another party from making use of the mark, that may not be
possible due to the trade mark owner's own lack of attention to
the improperly-allowed use.
Following on from a loss of the ability to enforce exclusive
rights of use can be the loss of the trade-mark outright, through a
court declaring the trade-mark to be so compromised that the owner
has voided its own exclusive rights. In the case of a
registered mark, a court may even invalidate the registration.
So if you need or want to permit others to use your trade-mark
take time to do it correctly. Seek advice from trained
trade-mark counsel. Creating a licensing document can be
simple or complicated, depending on the nature of use of the mark
to be permitted, but the time and expense in preparing the document
sets the tone for the business relationship going forward and
protects the object of the license: the exclusivity in the
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