In the Fédération Étudiante Collégiale du Québec v. Raymond Drapeau decision, the Trademark Opposition Board refused registration of Mr. Drapeau's trademark application for the red square held by a golden pin.
In 2012, the province of Québec was hit by one of the longest and most important student strikes in its history, also called Printemps Érable (Maple Spring). Students protested each day in the streets of Montréal in response to the provincial government's attempt to raise university tuition fees.
Two important symbols were adopted by the striking students: making a racket with pots and pans and wearing a red square held by a golden pin. The latter was proudly worn not only by student protestors, but also by their supporters, including several MPs of the Québec National Assembly. The red square quickly became a strong symbol of identification with the student movement against rising tuition fees.
Raymond Drapeau filed a trademark application for the red square with the gold pin, in association with T-shirts, posters, sweaters, cups, briefcases, wristbands, postcards, umbrellas and baseball caps. His motives for doing this seem clear from one of his statements reproduced in the November 26, 2013 edition of the newspaper La Presse: "They [the creators of the symbol and student associations] just had to apply for registration [of the red square] before. They did not."
Thus, the Fédération Étudiante Collégiale du Québec (FECQ) filed a statement of opposition against Mr. Drapeau's application to prevent him from registering the red square with the golden pin as a trademark for the goods, which would have granted him the exclusive right to use it with the associated products, anywhere across Canada.
Several grounds were raised by the FECQ, though only one was successful. As a result, Mr. Drapeau's application was refused.
Among the rejected grounds was one based on the likelihood of confusion based on confusion with the previous use by the students. Since the students' red square did not identify clothing, per se, and there was no evidence of transfer of ownership of these clothes or other products by the FECQ, the Board found there was no "use" of the red square as a trademark. It was rather a symbol of the student protest movement.
However, the Opposition Board agreed with the FECQ with regard to the ground based on the absence of distinctive character of the trademark – i.e. the red square cannot be used to identify Mr. Drapeau as a source of products sold in conjunction with the red square. Indeed, consumers would associate the red square to the Printemps Érable student protest movement, not with Mr. Drapeau as the source of the goods. Mr. Drapeau's application was therefore refused. He may nevertheless continue to sell his products bearing the red square, but he does not have the exclusive right to do so.
The Opposition Board adds that even if there are registered trademarks that include political symbols, or represent protests or social struggles, such as the hammer and sickle, the peace sign, the raised fist and the anarchist symbol, these marks include other elements that must be taken into account in assessing the marks' distinctiveness. In addition, each case must be decided on its own merit.
This decision reminds us that anyone trying to profit from a "movement" by attempting to register the movement's symbol as a trademark will face difficulties, since the symbol rarely distinguishes a single source and will usually be found non distinctive of that person's good and services for that reason. It should also remind us that exclusive rights granted by a trademark registration should not serve the interests of those who want to profit from the creation of others—or punish them for not having sought their protection—and then try to be declared the sole owner of such rights, especially if the "mark" is actually a symbol of social struggle for advancing a cause, and not to make a profit.
This is an important reminder as upcoming amendments to the Trademarks Act, that are expected to come into force in 2018, will allow the registration of a trademark without any use, paving the way for trademark squatters.
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