In the Fédération Étudiante
Collégiale du Québecv.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
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
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
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
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
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