Actions for infringement of a registered trademark are generally brought in the Federal Court, and the Trademarks Act provides remedies including damages or profits, delivery up of all infringing goods and injunctive relief against further unauthorized use of the infringing mark.
Infringing goods may also be detained by Canada Customs at their point of entry into the country.
Where the rights to an unregistered trademark, trade name, or business name are violated, the proprietor of the mark or name is entitled to bring an action for the tort of passing-off against the party. Such tort actions must be brought in provincial superior court.
In an action for passing-off, the plaintiff must prove not only that the defendant's mark is likely to cause confusion between their respective businesses, but must also prove that the public exclusively associates the mark with the goods or services of the plaintiff.
Some of Canada's most important trademark litigation has reached successful conclusion in the hands of Bereskin & Parr LLP lawyers. Our extensive courtroom experience is not confined to major cases; simple disputes receive equal attention and concern. Before commencing any litigation, however, we carefully review all options available to the client, including negotiation and alternative dispute resolution. When litigation is necessary, we carefully plan the strategy with the client, work in a cost-effective manner, and always treat the client as an essential member of the litigation team.
