Canada
Answer ... As per Section 2 of the Trademarks Act, a ‘trademark’ is a sign or combination of signs that is used or proposed to be used by a person for the purpose of distinguishing or so as to distinguish its goods or services from those of others.
Canadian trademark law also provides for the protection of a certification mark, which is a sign or combination of signs that is used or proposed to be used for the purpose of distinguishing, or so as to distinguish, goods or services that are of a defined standard from those that are not, with respect to:
- the character or quality of the goods or services;
- the working conditions under which the goods are produced or the services performed;
- the class of persons by whom the goods are produced or the services performed; or
- the area within which the goods are produced or the services performed.
Additionally, Canadian trademark law provides for the protection of prohibited marks. 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, the items listed in Section 9 of the act – including any badge, crest, emblem or mark adopted and used by any public authority in Canada – as an official mark.
Finally, Canadian trademark law provides for the protection of a geographical indication, which identifies a wine or spirit, or an agricultural product or food category set out in the schedule to the act, as originating in a territory if a certain quality, reputation or other characteristic is attributable to its geographical origin.
Canada
Answer ... To function as a trademark, a mark must be used by a person for the purpose of distinguishing its goods or services from those of others.
As per Section 12(1) of the Trademarks Act, a trademark is registrable if it is not:
- a word that is primarily merely the name or the surname of an individual who is living or has died within the preceding 30 years;
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whether depicted, written or sounded, either clearly descriptive or deceptively misdescriptive in the English or French language of the character or quality of:
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- the goods or services in association with which it is used or proposed to be used; or
- the conditions of or the persons employed in their production or of their place of origin;
- the name in any language of any of the goods or services in connection with which it is used or proposed to be used;
- confusing with a registered trademark;
- a sign or combination of signs whose adoption is prohibited by Section 9 or 10 of the act;
- in whole or in part, a protected geographical indication identifying a wine, spirit, agricultural product or food, where the trademark is to be registered in association with a wine, spirit, agricultural product or food not originating in a territory indicated by the geographical indication; or
- subject to Sections 3(3) and 3(4)(a) of the Olympic and Paralympic Marks Act, a mark whose adoption is prohibited by Section 3(1) of that act.
Canada
Answer ... See question 2.1.
Non-traditional trademarks – including but not limited to three-dimensional shapes, modes of packaging goods, sounds, scents, tastes and textures – and any trademark which, as per the Registrar’s preliminary view, is not inherently distinctive may be eligible to function as a trademark if, on request by the Registrar, the applicant provides sufficient evidence that the trademark is distinctive at the filing date of the application for its registration.
Additionally, as per Section 12(2) of the Trademarks Act, a trademark is not registrable if, in relation to the goods or services in association with which it is used or proposed to be used, its features are dictated primarily by a utilitarian function.