Subsection 9(1) of the Trademarks Act provides that no person shall adopt in connection with a business, as a trademark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for, a prohibited mark.

The adoption, which includes use and application for registration, of a variety of regal, governmental or public words, crests, symbols, marks, or other devices, is prohibited. The list is lengthy.

One common symbol on the list is the 11-point maple leaf. However, it may be used in a design or a trademark provided it is disclaimed and such use conforms to "good taste".

Nothing prevents the adoption, use, or registration as a trademark or otherwise, in connection with a business, of any mark on the list with the consent of Her Majesty or such other person, society, authority, or organization as considered to have been intended to be protected by this section.

For some of the prohibited marks the relevant interested party must have requested the Registrar of Trademarks give public notice of the adoption and use of their badge, crest, emblem, or mark for subsection 9(1) to apply to such devices.

Some of the surprising provisions of section 9 are:

(j) any scandalous, obscene or immoral word or device;

(k) any matter that may falsely suggest a connection with any living individual;

(l) the portrait or signature of any individual who is living or has died within the preceding thirty years;

(n) any badge, crest, emblem or mark

(i) adopted or used by any of Her Majesty's Forces as defined in the National Defence Act,

(ii) of any university, or

(iii) adopted and used by any public authority, in Canada as an official mark for goods or services, in respect of which the Registrar has, at the request of Her Majesty or of the university or public authority given public notice of its adoption and use.

Marks that come within item "n" are called "Official marks". Their existence can create problems and will be discussed in a future comment.

Brand owners need to be aware of section 9 and the potential problems that can arise.

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