A strong trademark gives your business a considerable advantage over your competitors. A trademark is a non-generic word, phrase or graphic that represents the goods or products that you use in commerce. Trademark law gives owners certain rights. The value of your trademark rights depends on how much care you take in making sure the trademark is distinct, whether you use the trademark properly and if you take the steps necessary to protect the trademark. Let us talk about some of the most important laws of Canadian Trademark Lawyer.
Know the Governing Law Canadian Trademark lawyer
You must know which laws govern your trademark-related activities. The two laws governing trademark in Canada are Common Law and the Trademarks Act. The common law tort of passing off applies to unregistered trademark while the Trademarks Act applies to registered trademarks.
The Canadian Intellectual Property Office (CIPO) is the agency that oversees trademark law and registration in Canada. The Office applies the Act to its overall commerce powers during and after registrations. Under the common law, you gain the rights over a unique trademark by being the first to use it in commerce. The Act gives trademark owners more options but only within its borders. To protect your trademark rights when you do business across state lines, you must look at the Trademarks Act for your rights and remedies.
Make it Distinct from Other Marks
Your first duty is to choose a trademark that is distinct from other company’s marks. You are not permitted to use a trademark to mislead the public intentionally about the relationship your company has with any other business. If marks are too similar, consumers may assume a relationship among companies where none exists.
You must search through CIPO, NUANS (Newly Upgraded Automated Name Search), and possibly US databases to learn whether your proposed mark is similar to another mark. Investigating trademarks will help you to avoid litigation for infringement. You will also put yourself in a better position to register your mark with the help of a Canadian Trademark Lawyer.
Do Not Use Generic Terms
You must choose something other than a generic term. or image to serve as your trademark. The Trademarks Act grants you exclusive use over your trademark and therefore the laws will not protect words that are in common usage. Do not expect any agency to provide you with hard and fast rules to help you weed out generic terms or images. Whether something is generic, is subject to interpretation and the guidelines adapt to societal changes over the years.
Categorize Your Mark
It is your responsibility to identify which of your products or goods the trademark represents. You also have a duty to categorize the mark with respect to the industry in which you market the product. The Trademarks Act takes into account the types of businesses and products at issue in deciding whether there is a likelihood that the public will become confused about a relationship between two companies. The public is less likely to confuse two similar trademarks in two very different industries.
Register Your Mark
Registering your trademark gives you the maximum number of tools with which to protect your mark. Registering your trademark does require you to submit documentation and pay fees. In most instances, it is prudent to hire a Trademark lawyer who specializes in trademark applications. Despite the tight margins under which many small businesses operate, the costs to register a trademark is a worthwhile investment. Although you may use a trademark without registering it, by registering, you increase the number of options available to you to defend and prosecute trademark violations.
Use Your Mark
It is your responsibility to keep your trademark active. Other companies may assert that you have abandoned your mark and therefore they are not infringing on any rights you once may have had over it. The Trademarks Act presumes that you have abandoned your trademark if you do not renew your exclusive right to use the mark in Canada after the expiration of your 10 years protection period.
Also, courts will look at the circumstances surrounding your use of the trademark to determine whether or not you have abandoned it. Keep records of how and when you have used your trademark on signage, in brochures, on product labels and in advertising to demonstrate that you are using your trademark.
Prevent Others from Using Your Mark
You must act when you learn that someone else is infringing upon your trademark. Under a principle known as laches and acquiescence, someone defending an infringement suit will try to argue that you knew about their use of a similar mark, that you let an unreasonable amount of time pass without doing anything to stop it and that they built up their brand around the trademark in the intervening time.
Laches is an equitable doctrine, which means that the courts will consider fairness and the behaviour of the parties when deciding whether to dismiss or uphold a claim of infringement. You can put yourself in a better position by staying abreast of any infringing marks and pursuing your remedies diligently.
Owning a trademark in Canada is a proven way to add value to your small business. The potential rewards outweigh the effort that you have to make to create and maintain your trademark. Incorporate your trademark into your overall marketing plan so that you will have a definite idea about how you will use your mark at each stage of your product’s life cycle.
