Canadian trademark law

Canadian trademark law provides protection to marks by statute under the Trade-marks Act and also at common law. Trademark law provides protection for distinctive marks, certification marks, distinguishing guises, and proposed marks against those who appropriate the goodwill of the mark or create confusion between different vendors' goods or services. A mark can be protected either as a registered trade-mark under the Act or can alternately be protected by a common law action in passing off.

A trade-mark is only protected to the extent that it is used by a person to distinguish a product or service from another. Trade-marks do not give exclusive rights to a symbol, for instance, but only for the symbol in relation to a particular use in order to distinguish the product from others.

Trade-marks help potential customers to identify the source of products and thus have a significant impact on trade, especially when product identity is marketed as an extension of the customers' personal identity.

Although any name or symbol could be protected under trade-mark law, there are issues concerning the limits of that protection. For instance, enforcing protection of a mark and its perception is questionable where there is no actual confusion for consumers. Likewise, protecting a mark against all criticism or allusions, as if it were an actual person, is controversial since trying to protect marks at all costs could be harmful to free speech and free trade.

The Act gives the following definition for the scope of trademarks:

"trade-mark" means:

Certification marks are used in classifying the nature of a good or service (e.g., a Fair Trade Certified logo).

A distinguishing guise can only be registered if it "is not likely unreasonably to limit the development of any art or industry". In Kirkbi AG v. Ritvik Holdings Inc., the Supreme Court of Canada declared:

43. ... the Act clearly recognizes that it does not protect the utilitarian features of a distinguishing guise. In this manner, it acknowledges the existence and relevance of a doctrine of long standing in the law of trade-marks. This doctrine recognizes that trade-marks law is not intended to prevent the competitive use of utilitarian features of products, but that it fulfills a source-distinguishing function. This doctrine of functionality goes to the essence of what is a trade-mark.

...
Wikipedia