Does Canada recognize common law trademark rights?
Although common law trademark rights have been interpreted to be “recognized” by the courts, the “language” police have taken a narrower view in their enforcement. A pending trademark application would not necessarily be acceptable to the “language” police; only a registered Canadian trademark would.
What are common law trademark rights?
A common law trademark is a trademark established solely through use in commerce in a specific geographical area. Business names, logos, and phrases that are regularly used–even though they have never been federally registered–can all be considered common law trademarks.
Can you assign common law trademark rights?
Even unregistered common law trade marks, trade names and domain names may be licensed or assigned, although in the case of these particular rights, there is no provision for recordal at in the Trade-marks Office.
How do you prove common law trademark rights?
The U.S. common law trademark starts when you use the mark in commerce for the first time within a geographic area. It endures with continual, deliberate use and is shown by the superscript symbol “TM.”
What Cannot be trademarked in Canada?
You may not register a trademark that is identical or similar to certain official marks unless you have the permission from the organization that controls the mark. These official marks include: official government designs (e.g., the Canadian flag) coats of arms of the Royal Family.
How are trademarks protected in Canada?
A trademark registered in Canada is protected nationwide. If the owner continuously uses the trademark in connection with the goods and services with which the trademark is associated, the mark is protected. Upon payment of a renewal fee, the trademark can be renewed for another 10-year term.
Can you use the TM symbol without registering?
The (TM) symbol actually has no legal meaning. You can use the symbol on any mark that your company uses without registering it. But as mentioned, there is no legal protection when using TM. If you use a mark that infringes on someone else’s trademark, you still put yourself at risk for legal trouble.
Can you trademark a name already in use?
A registered trademark offers legal protection to unique logos, designs and names your business uses. You can’t file to register a trademark that someone else is already using if they used the trademark first.
Can you own an unregistered trademark?
Owners must properly use the registered trademark. Unregistered trademark rights may only be conferred to the owner after use over a period of time and once the mark has become gained sufficient goodwill or reputation.
Can you have a trademark without registering?
If you do not register your trademark, you will have legal rights only within the geographic areas where you operate. Although the range of protection is limited to the region where you use your unregistered trademark, you can protect an unregistered but valid trademark from infringement and dilution under common law.
Can you sue without a trademark?
1. We cannot get sued for trademark infringement because we have a federal registration. This essentially means that, even without a trademark registration, a mark owner is entitled to trademark rights so long as it uses the mark in connection with providing goods and services in commerce.
Can you trademark a name already in use but not trademarked?
If you’re wondering, “can you trademark something that already exists,” the simple answer is “no.” Generally speaking, if somebody has used a trademark before you, you can’t register the trademark for yourself.
How are common law trademarks acquired in Canada?
Rights are typically acquired through actual use of the common law trademark in Canada in association with goods or services. The rights are territorial and are primarily limited to the specific geographical area in which they are used.
Do you need to register a trademark in Canada?
Registrations in other countries provide no protection in Canada. Using your mark extensively in Canada might give you some “common law” trademark rights in areas where your mark has become well known; however, this will not stop competitors from using the mark in other areas. In contrast, registration will protect your mark throughout Canada.
How are unregistered trademarks protected in common law?
Unregistered trademarks receive protection if certain conditions are met – this protection is in the form of the tort of passing off, which arises from the common law (i.e., from court decisions) and is also codified in the Trademarks Act .
Can you sue someone for using a trademark in Canada?
The Trademarks Act sets up an official Registry of Trademarks and everyone is deemed to be aware of what is on this Registry. As a result, if someone uses your registered trademark even if they don’t actually know about it, they are nevertheless infringing and you can sue them. Your rights are also good throughout Canada.