2017 will mark the 150th anniversary of Canadian
confederation. The government of Canada has already started the countdown, and many businesses are preparing to
join in the celebrations.
If your company is gearing up for this milestone, it is
important to keep in mind the government's rules for Canadian symbols,
particularly for commercial use of the Canadian flag.
The National Flag of Canada
Permission must be obtained from the government of Canada to use
the national flag of Canada for commercial purposes. Requests for
permission should be forwarded to the State Ceremonial and Canadian
Symbols Department of Canadian Heritage, with a sketch of the
intended use. The usual turnaround time for permission is 10 days
(and often faster).
Permission is most often granted. However, the government will
deny a request if the flag is materially altered (for example, if
the flag is written on, or the maple leaf is replaced with
something else, with a typical example being a marijuana leaf).
Likewise, permission will be denied if the flag is used in a way
that leaves the impression that there is government endorsement.
When permission is denied, the government will often suggest
changes so that permission can be granted.
The 11-point maple leaf
If you don't want to seek government permission, the
11-point maple leaf can be used without permission, provided the
use is in good taste. No rights can be acquired in, and you cannot
attempt to prevent third parties from using the maple leaf.
Other Canadian symbols
Many other traditional Canadian symbols are in the public
domain, for example, a beaver, a moose and a loon. Third party
rights, though, should be taken into account before adopting these
Also, care must be taken on whether the use of any of these
Canadian symbols will create the general impression that the
associated goods or services originate in Canada. There are strict
compositional rules for making direct or implied "Made in Canada" and "Product of
Canada" claims. The government agency regulating
advertising has stated that Canadian symbols can be as powerful at
making implied claims, as express ones.
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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The Canadian Intellectual Property Office has issued a report entitled IP Canada Report 2016, discussing trends in IP use domestically, and by Canadians abroad, based on analysis of CIPO's internal data and those collected by the World Intellectual Property Organization.
The value of reliance on a trade-mark registration, as opposed to prior use, stands out sharply in the recent Federal Court of Appeal case of Pizzaiolo Restaurants Inc. v. Les Restaurants La Pizzaiolle Inc. ( 2016 FCA 256 October 28, 2016).
This is an appeal from the Federal Court's decision setting aside the Registrar of Trade-marks decision to the extent that it dismissed the applicant's opposition regarding the mark PIZZAIOLO and Design.
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