(5) The proceedings on an application shall be heard and determined summarily on evidence adduced by affidavit unless the Federal Court directs otherwise. 114 In sections 115 and 116, Act means the Trademarks Act. 31 An applicant who seeks to register a trademark that consists only of letters, numerals, punctuation marks, diacritics or typographical symbols, or of any combination of them, without limiting the trademark to any particular font, size or colour shall. (c) a customary name of a plant variety or an animal breed existing in Canada on or before the day on which the indication is entered on the list kept under subsection 11.12(1). (2) The Registrar shall, on request and on payment of the prescribed fee, furnish a copy certified by the Registrar of any entry in the register or lists, or of any of those applications, requests or documents. (4) Every person commits an offence who manufactures, causes to be manufactured, possesses, imports, exports or attempts to export any label or packaging, in any form, for the purpose of its sale or of its distribution on a commercial scale or for the purpose of the sale, distribution on a commercial scale or advertisement of goods or services in association with it, if that sale, distribution or advertisement would be contrary to section 19 or 20 and the person knows that. Prohibitions 8. (2) The register shall show, with reference to each registered trademark, the following: (b) a summary of the application for registration; (c) a summary of all documents deposited with the application or subsequently thereto and affecting the rights to the trademark; (e) particulars of each change of name and address; (e.1) the names of the goods or services in respect of which the trademark is registered, grouped according to the classes of the Nice Classification, each group being preceded by the number of the class of the Nice Classification to which that group of goods or services belongs and presented in the order of the classes of the Nice Classification; and. (2) If subsection 70(7) of the other Act produces its effects before section 255 of this Act comes into force, then. (b) does not set out a ground of opposition in sufficient detail to enable the applicant to reply to it. 1. Bill C-31 makes sweeping amendments to the Trade-marks Act (Canada), some of which will implement portions of the Madrid Protocol, Singapore Treaty, and Nice Agreement into Canadian law, if passed. 51.12 A court may award damages against the owner of a relevant protected mark who commenced proceedings referred to in subsection 51.06(3) to the owner, importer, exporter or consignee of the goods who is a party to the proceedings for losses, costs or prejudice suffered as a result of the detention of goods if the proceedings are dismissed or discontinued. (2) The owner of a certification mark may license others to use it in association with goods or services that meet the defined standard, and the use of the certification mark accordingly is deemed to be use by the owner. — 2014, c. 32, s. 57, as amended by 2014, c. 20, s. 361(E). Exception not applicable to labels or packaging. (i) subject to subsection 3(3) and paragraph 3(4)(a) of the Olympic and Paralympic Marks Act, a mark the adoption of which is prohibited by subsection 3(1) of that Act. 11.2 (1) Section 11.14 and paragraph 12(1)(g) do not prevent the adoption, use or registration as a trademark in association with a wine of a protected geographical indication, or any translation of it in any language, by a person if they have, in good faith, before the later of January 1, 1996 and the day on which protection of the indication in the territory indicated by the indication begins, (a) filed an application in accordance with section 30 for, or secured the registration of, the trademark in association with a wine; or. However, this section does not apply in respect of an action or proceeding commenced before that day. 29.1 Despite subsection 29(1), the Registrar may destroy. Minister means the Minister designated under subsection (2). (ministre), responsible authority means, in relation to a wine or spirit, or an agricultural product or food of a category set out in the schedule, the person, firm or other entity that, in the Minister’s opinion, is, by reason of state or commercial interest, sufficiently connected with and knowledgeable about that wine or spirit or that agricultural product or food to be a party to any proceedings under this Act. (autorité compétente). (3) The Registrar may, within six months after an entry in the register is made, correct any error in the entry that is obvious from the documents relating to the registered trademark in question that are, at the time that the entry is made, on file in the Registrar’s office. However, the Supreme Court of Canada ruled in MacDonald v. (b) within the scope of the original application on the day on which the divisional application is filed, if the divisional application is filed on or after the day on which the original application is advertised under subsection 37(1). 26 (1) There shall be kept under the supervision of the Registrar a register of trademarks and of transfers, disclaimers, amendments, judgments and orders relating to each registered trademark. (3) For the purposes of sections 11.13 and 11.21, an indication identifying an agricultural product or food is confusing with a trademark if the use of both the indication and the trademark in the same area would be likely to lead to the inference that the agricultural product or food associated with the indication originates from the same source as the goods or services associated with the trademark. (4) If the prescribed renewal fee is paid within the prescribed period, the renewal period begins at the expiry of the initial period or the last renewal period. (iii) a trademark in respect of which an application for registration was previously filed in Canada and remains pending. (5) In the course of proceedings referred to in subsection 51.06(3), the court may, on the application of the Minister or a party to the proceedings, require the owner of the relevant protected mark to furnish security, in an amount fixed by the court, (a) to cover duties, as defined in subsection 2(1) of the Customs Act, storage and handling charges, and any other amount that may become chargeable against the goods; and. (4) A direction under paragraph (1)(b) that the goods are no longer to be detained for the purpose of the proceedings does not preclude a customs officer from continuing to detain the goods under the Customs Act for another purpose. 62 This Act shall be administered by the Minister of Industry. (b) the objection is withdrawn or deemed under subsection (6) to have been withdrawn. 12 (1) Subject to subsection (2), a trademark is registrable if it is not 1.1. (7) Where, in an action commenced under this section, the court finds that the importation is or the distribution would be contrary to this Act, the court may make any order that it considers appropriate in the circumstances, including an order that the goods be destroyed or exported, or that they be delivered up to the plaintiff as the plaintiff’s property absolutely. 65 The Governor in Council may make regulations for carrying into effect the purposes and provisions of this Act and, in particular, may make regulations. Marginal note: Confusion — … 222 Section 45 of the Act is amended by adding the following after subsection (4): (4.1) Subject to the regulations, the Registrar may, by order, award costs in a proceeding under this section. 1 comes into force shall be dealt with and disposed of in accordance with. (2) A person who receives a sample or information that is provided under subsection 51.06(1) shall not use the information, or information that is derived from the sample, for any purpose other than to pursue remedies under this Act. Marginal note:Further evidence in certain cases. (c) it is made for the purpose of seeking or giving advice with respect to any matter relating to the protection of a trademark, geographical indication or mark referred to in paragraph 9(1)(e), (i), (i.1), (i.3), (n) or (n.1). Marginal note:Registration of trademark before April 1, 1949. (5) On an appeal under subsection (1), evidence in addition to that adduced before the Registrar may be adduced and the Federal Court may exercise any discretion vested in the Registrar. (3.1) For the purposes of subsection (2.1), the statement by the Minister must set out all of the following information: (a) that the Minister proposes that the translation be entered on the list; (b) the indication on the list that corresponds to the translation; (c) the common name of the agricultural product or food that the indication identifies and the category set out in the schedule to which it belongs; (d) the name of the responsible authority in relation to the agricultural product or food and the address of the responsible authority’s principal office or place of business in Canada or, if the responsible authority has no office or place of business in Canada, the name and address in Canada of a person or firm on whom any document may be served with the same effect as if it had been served on the responsible authority itself. 51.11 (1) In the course of proceedings referred to in subsection 51.06(3), the court may, on the application of the Minister or a party to the proceedings, (a) impose conditions on the storage or detention of the goods that are the subject of the proceedings; or. Under the current Trade-marks Act, goods and services descriptions in Canadian applications only needed to be worded in “ordinary commercial terms” without regard to the classes of the associated goods and services. (2) A person who receives a sample or information that is provided under subsection 51.06(1) shall not use the information, or information that is derived from the sample, for any purpose other than to pursue remedies under this Act. 11.22 Paragraph 11.18(2)(a) and section 11.21 do not apply with respect to a protected geographical indication that is listed in Part A of Annex 20-A, as amended from time to time, of Chapter Twenty of the Comprehensive Economic and Trade Agreement between Canada and the European Union and its Member States, done at Brussels on October 30, 2016. (f) subject to the regulations, merge registrations of the trademark that stem, under section 39, from the same original application. The government has also introduced the Combating Counterfeit Products Act to provide the Canada Border Services Agency (CBSA) with the authority to take action against counterfeit goods at the border, and … (f) that, at the filing date of the application in Canada, determined without taking into account subsection 34(1), the applicant was not entitled to use the trademark in Canada in association with those goods or services. (4) The Registrar shall remove an indication or any translation of an indication from the list, (a) on the publication of a statement by the Minister on the website of the Canadian Intellectual Property Office specifying that the indication or the translation is to be removed; or. (5) If the Registrar considers that the opposition raises a substantial issue for decision, he shall forward a copy of the statement of opposition to the applicant. Marginal note:Powers of Governor in Council. (b) if the Federal Court makes an order under subsection 11.21(1) for the removal of the indication or the translation. (iii) the day on which a court declares that the badge, crest, emblem or mark in question is invalid or, if an appeal is taken, on which final judgment in the appeal upholding the declaration is given; (e) a document relating to objection proceedings under section 11.13 with respect to a geographical indication that is removed from the list of geographical indications under subsection 11.12(4), at any time after six years after the day on which it is removed; and. Marginal note:Registration of certification marks. 5 A trademark is deemed to be made known in Canada by a person only if it is used by that person in a country of the Union, other than Canada, in association with goods or services, and, (a) the goods are distributed in association with it in Canada, or, (b) the goods or services are advertised in association with it in, (i) any printed publication circulated in Canada in the ordinary course of commerce among potential dealers in or users of the goods or services, or. (6) Unless an order made under subsection (1) provides otherwise, the Minister shall, subject to the Customs Act and to any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods, release the goods without further notice to the applicant if, two weeks after the applicant has been notified under paragraph (1)(b), the Minister has not been notified that an action has been commenced for a final determination by the court of the legality of the importation or distribution of the goods. 65.2 The Governor in Council may make regulations, (a) respecting the list to be kept under subsection 11.12(1), including information relating to the listed geographical indications and translations to be included on the list; and. Marginal note:Exception for common names for wines. certification mark. 346, 361(E), c. 32, s. 53, 2014, c. 20, ss. (1.01) An infringement under paragraph (1)(b) is presumed, unless the contrary is proven, if a person who is not entitled to use a registered trademark imports goods on a commercial scale that bear a trademark that is identical to, or cannot be distinguished in its essential aspects from, the trademark registered for such goods. (3) The indication and all translations of the indication are deemed to have been entered on the list on the date on which the indication is added to Part A of Annex 20-A of Chapter Twenty of that Agreement. (2) The Registrar shall, having regard to the evidence adduced, restrict the registration to the goods or services in association with which, and to the defined territorial area in Canada in which, the trademark is shown to be distinctive. (3) If, before the goods are no longer detained for the purpose of enforcing of section 51.03, the owner of a relevant protected mark has provided the Minister, in the manner specified by the Minister, with a copy of a document filed with a court commencing proceedings to obtain a remedy under this Act with respect to the detained goods, the customs officer shall continue to detain them until the Minister is informed in writing that. (4) The Registrar shall, subject to the regulations, register the transfer of any registered trademark on the request of the registered owner or, on receipt of evidence satisfactory to the Registrar of the transfer, on the request of a transferee of the trademark. 19 Subject to sections 21, 32 and 67, the registration of a trademark in respect of any goods or services, unless shown to be invalid, gives to the owner of the trademark the exclusive right to the use throughout Canada of the trademark in respect of those goods or services. 239 (1) In this section, other Act means the Economic Action Plan 2015 Act, No. 11.18 (1) Sections 11.14 and 11.15 and paragraphs 12(1)(g) to (h.1) do not prevent the adoption, use or registration as a trademark or otherwise, in connection with a business, of a protected geographical indication, or any translation of it in any language, if the indication has ceased to be protected by the law applicable to the territory in which the wine or spirit or the agricultural product or food is identified as originating, or has fallen into disuse in that territory. (3) Section 11.15 and paragraph 12(1)(h.1) do not prevent the adoption, use or registration as a trademark in association with an agricultural product or food of a category set out in the schedule of a protected geographical indication, or any translation of it in any language, by a person if they have, in good faith, before the day on which a statement by the Minister is published under subsection 11.12(2) or (2.1) in respect of the indication or translation, (a) filed an application in accordance with section 30 for, or secured the registration of, the trademark in association with an agricultural product or food belonging to the same category; or. (b) if the Federal Court makes an order under subsection 11.21(1) for the removal of the indication or the translation. (2) If the initial period or a renewal period expires and the prescribed renewal fee has not been paid, the Registrar shall send a notice to the registered owner stating that if the fee is not paid within the prescribed period, the registration will be expunged. Marginal note:Damages against trademark owner. (2.1) The registered owner of the trademark shall, in the prescribed manner and within the prescribed time, serve on the person at whose request the notice was given any evidence that the registered owner submits to the Registrar. (3) The court may impose a condition described in subsection (2) despite section 31 of the Customs Act. (5) An applicant is not permitted to apply under section 47 for an extension of the six-month period referred to in paragraph (1)(a) until that period has ended, and the Registrar is not permitted to extend the period by more than seven days. (6.1) The indication or the translation shall not be entered on the list if, in the prescribed circumstances, the responsible authority does not submit and serve evidence or a statement that the responsible authority does not wish to submit evidence. Definitions 3. (3) During the period that begins on the day on which this subsection comes into force and ends on the fifth anniversary of that day, section 11.15 does not apply to the use, in connection with a business, of the indication “Jambon de Bayonne”, or any translation of it in any language, by a person if they or their predecessor in title used the indication or the translation in relation to any business or commercial activity in respect of an agricultural product or food of the category of dry-cured meats, as set out in the schedule, for less than 10 years before October 18, 2013. (2) The Registrar shall, on request and on payment of the prescribed fee, furnish a copy certified by the Registrar of any entry in the register or lists, or of any of those applications, requests or documents. (5) Section 11.15 does not apply to the use, in connection with a business, of the indication “Beaufort”, or any translation of it in any language, by a person if, (a) the person or their predecessor in title used the indication or the translation for at least 10 years before October 18, 2013 in relation to any business or commercial activity in respect of an agricultural product or food of the category of cheeses, as set out in the schedule; or. (4) Subsection (3) does not apply to comparative advertising on labels or packaging. 51.04 (1) The owner of a protected mark may file with the Minister, in the form and manner specified by the Minister, a request for assistance in pursuing remedies under this Act with respect to goods imported or exported in contravention of section 51.03. 39 (1) After having filed an application for the registration of a trademark, an applicant may limit the original application to one or more of the goods or services that were within its scope and file a divisional application for the registration of the same trademark in association with any other goods or services that were, (a) within the scope of the original application on its filing date, determined without taking into account subsection 34(1); and. (3) For the purposes of sections 11.13 and 11.21, an indication identifying an agricultural product or food is confusing with a trademark if the use of both the indication and the trademark in the same area would be likely to lead to the inference that the agricultural product or food associated with the indication originates from the same source as the goods or services associated with the trademark. (2.3) Subsections (2.1) and (2.2) do not apply if. 11.17 (1) Section 11.14 does not apply to the continued and similar use of a protected geographical indication identifying a wine or spirit, or any translation of it in any language, by a Canadian who has used it in a continuous manner in relation to any business or commercial activity in respect of goods or services, (a) in good faith before April 15, 1994; or. (3) A divisional application is a separate application, including with respect to the payment of any fees. 44.1 (1) The Registrar may give notice to the registered owner of a trademark requiring the owner to furnish the Registrar, in the prescribed time and manner, with a statement of the goods or services in respect of which the trademark is registered, in which those goods or services are grouped in the manner described in subsection 30(3). Marginal note:Where court finds in plaintiff’s favour. Despite section 47, that period cannot be extended. Marginal note:Effect of decision on translations. (2) In proceedings respecting a registered trademark commenced after the expiry of five years from the earlier of the date of registration of the trademark in Canada and the date on which use of the trademark by the person who filed the application for registration of the trademark or that person’s predecessor in title has become generally known in Canada, the registration must not be expunged or amended or held invalid on the basis of any of paragraphs 12(1)(g) to (h.1) unless it is established that the person who filed the application for registration of the trademark did so with knowledge that the trademark was in whole or in part a protected geographical indication. 19 Subject to sections 21, 32 and 67, the registration of a trademark in respect of any goods or services, unless shown to be invalid, gives to the owner of the trademark the exclusive right to the use throughout Canada of the trademark in respect of those goods or services. (3.2) At any time before the day on which the responsible authority files a counter statement, the Registrar may, at the responsible authority’s request, strike all or part of the statement of objection if the statement or part of it, (a) is not based on any of the grounds set out in subsection (2) or (2.1); or. 63 (1) There shall be a Registrar of Trademarks, who shall be the Commissioner of Patents appointed under subsection 4(1) of the Patent Act. (4) Subsection 46(1), as it read immediately before the day on which section 350 of the Economic Action Plan 2014 Act, No. (3) Despite paragraph (1)(c), if the goods are forfeited under subsection 39(1) of the Customs Act after the Minister has received the written notification referred to in that paragraph, the period ends on the day on which the goods are forfeited. (3) The appellant shall, within the time limited or allowed by subsection (1), send a copy of the notice by registered mail to the registered owner of any trademark that has been referred to by the Registrar in the decision complained of and to every other person who was entitled to notice of the decision. 24 With the consent of the owner of a certification mark, a trademark confusing with the certification mark may, if it exhibits an appropriate difference, be registered by some other person to indicate that the goods or services in association with which it is used have been manufactured, sold, leased, hired or performed by him as one of the persons entitled to use the certification mark, but the registration thereof shall be expunged by the Registrar on the withdrawal at any time of the consent of the owner of the certification mark or on the cancellation of the registration of the certification mark. 11.14 (1) No person shall adopt in connection with a business, as a trademark or otherwise, (a) a protected geographical indication identifying a wine in respect of a wine not originating in the territory indicated by the protected geographical indication; or. (4) If the Registrar is satisfied that the evidence should be kept confidential, he or she may, on any terms that he or she considers appropriate, order that the evidence be kept confidential. (4) For greater certainty, the Registrar is not required to enter those translations on the list. (b) the application is abandoned or deemed under subsection (11) to have been abandoned. (2) A person who makes a request to the Registrar relating to a judgment or order made by the Federal Court, the Federal Court of Appeal or the Supreme Court of Canada in a proceeding to which they were a party shall, at the request of the Registrar, send a copy of that judgment or order to the Registrar. While the national changes will ease the way for obtaining brands for Canadian cannabis … (2) The Registrar shall not receive any evidence other than the affidavit or statutory declaration, but may receive representations made in the prescribed manner and within the prescribed time by the registered owner of the trademark or by the person at whose request the notice was given. Trademark Owners John S. McKeown, Cynthia Rowden, Luna M. Samman, James L. Bikoff, and Matthias Berger. (5) A divisional application may itself be divided under subsection (1), in which case this section applies as if that divisional application were an original application. (2) Nothing in this section prevents the adoption, use or registration as a trademark or otherwise, in connection with a business, of any mark, (a) described in subsection (1) with the consent of Her Majesty or such other person, society, authority or organization as may be considered to have been intended to be protected by this section; or, (b) consisting of, or so nearly resembling as to be likely to be mistaken for, (i) an official sign or hallmark mentioned in paragraph (1)(i.1), except in respect of goods that are the same or similar to the goods in respect of which the official sign or hallmark has been adopted, or. The law of passing off protects the goodwill of businesses by preventing competitors from passing off their goods as those of another.. (b) respecting proceedings under section 11.13, including documents relating to those proceedings. (2) A copy of any entry in the register purporting to be certified to be true by the Registrar is evidence of the facts set out therein. 11.11 (1) The following definitions apply in this section and in sections 11.12 to 11.24. (2) The laws of Newfoundland as they existed immediately before April 1, 1949 continue to apply in respect of applications for the registration of trademarks under the laws of Newfoundland pending at that time and any trademarks registered under those applications shall, for the purposes of this section, be deemed to have been registered under the laws of Newfoundland before April 1, 1949. (2.1) Sections 11.14 and 11.15 and paragraphs 12(1)(g) to (h.1) do not prevent the adoption, use or registration as a trademark or otherwise, in connection with a business, of a translation of a protected geographical indication that is identical to a term customary in common language in Canada as the common name for a wine or spirit or an agricultural product or food. 330, 361(E), 362(E), c. 32, s. 53, 2014, c. 20, ss. Marginal note:Definitions2 In this Act,Reference to person2.1 Unless the context requires otherwise, a reference to person in this Act, in relation to a trademark, includes two or more persons who, by agreement, do not have the right to use the trademark in Canada except on behalf of both or all of them.Marginal note:When deemed to be adopted3 A trademark is deemed to have been adopted by a person when that person or his predecessor in title commenced to use it in Canada or to make it known … When deemed to be adopted 4. (a) a word that is primarily merely the name or the surname of an individual who is living or has died within the preceding thirty years; (b) whether depicted, written or sounded, either clearly descriptive or deceptively misdescriptive in the English or French language of the character or quality of the goods or services in association with which it is used or proposed to be used or of the conditions of or the persons employed in their production or of their place of origin; (c) the name in any language of any of the goods or services in connection with which it is used or proposed to be used; (d) confusing with a registered trademark; (e) a sign or combination of signs whose adoption is prohibited by section 9 or 10; (f) a denomination the adoption of which is prohibited by section 10.1; (g) in whole or in part a protected geographical indication identifying a wine, where the trademark is to be registered in association with a wine not originating in a territory indicated by the geographical indication; (h) in whole or in part a protected geographical indication identifying a spirit, where the trademark is to be registered in association with a spirit not originating in a territory indicated by the geographical indication; (h.1) in whole or in part a protected geographical indication, and the trademark is to be registered in association with an agricultural product or food — belonging to the same category, as set out in the schedule, as the agricultural product or food identified by the protected geographical indication — not originating in a territory indicated by the geographical indication; and. 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