Kara Sears
Canada's trademark law grants the owner of a trademark the sole right to use it for ten years, with the option to renew every decade. While the country's laws do not explicitly refer to the concept of fair use, it does recognize similar legal theories. For instance, the use of geographical names relating to a user's business location is generally considered fair use, even if it is the same or similar to another's mark. Canada also recognizes the fair dealing exception, which permits the unauthorized copying of copyrighted works in specific circumstances, such as research, private study, criticism, review, and news reporting.
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What You'll Learn
Canada's trademark law and copyright law
Although Canada does not explicitly refer to the concept of "fair use" in its trademark law, it does recognise legal theories similar to fair use. For example, using a geographical name related to a business location is generally considered fair use, as long as it does not suggest an association with an existing trademark and does not depreciate the value of the trademark. Additionally, descriptive fair use permits the use of another's trademark to describe a product or service rather than indicating its source.
On the other hand, copyright law in Canada, governed by the Copyright Act, provides protection for literary, artistic, dramatic, musical works, computer programs, performer's performances, sound recordings, and communication signals. It includes a statutory exception to copyright infringement known as "fair dealing." Fair dealing was first introduced in the 1921 Act, modelled after the UK Copyright Act 1911, and has since been amended multiple times. To qualify as fair dealing, the use must be for an enumerated purpose, such as research, private study, education, parody, satire, criticism, or news reporting, and it must be considered fair according to the criteria established by the Supreme Court of Canada.
While trademark law focuses on protecting consumers and preventing confusion, copyright law aims to balance the rights of owners and users. Canada's trademark law and copyright law each have their distinct purposes and applications, but they can sometimes overlap, especially when dealing with creative or complex trademark designs.
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Nominative fair use
While Canada may not explicitly refer to the concept of "fair use" in its case law or statutes, it does recognize legal theories similar to fair use. Nominative fair use is a legal doctrine that provides an affirmative defence to trademark infringement. It allows a person or company to use another's trademark as a reference to describe another product or service, or to compare it to their own.
For example, a repair shop can state that it repairs Rolls-Royce cars, or a phone case manufacturer can use the term "iPhone" on its packaging to indicate that it is usable with an iPhone. In these cases, the trademark is used to describe the product or service, rather than as a trademark to indicate the source of the goods or services.
To qualify as nominative fair use, certain conditions must be met. Firstly, the product or service in question must not be readily identifiable without using the trademark. Secondly, only as much of the trademark as is reasonably necessary to identify the product or service should be used. Finally, the use of the trademark must not cause any confusion regarding the trade origin or imply any relationship, sponsorship, or endorsement by the trademark owner.
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Descriptive fair use
While Canada does not explicitly refer to the concept of "fair use" in its case law or statutes, it does recognize legal theories similar to fair use.
In addition, descriptive fair use generally permits the use of descriptive terms about the kind, quality, quantity, intended purpose, value, geographical origin, time of production of the goods or services, main raw materials, functions, weight, or other characteristics. For instance, a newspaper publisher's use of the headline “The joy of six” on memorabilia related to the Chicago Bulls’ sixth championship was a descriptive, non-trademark use of that phrase.
It is important to note that care should be taken to ensure that the use of another’s mark under descriptive fair use is in accordance with honest commercial practices. This means not suggesting any association with the trademark owner and not depreciating the value of the goodwill in the mark.
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Trademarks dilution
While Canada does not have explicit trademark dilution laws, it provides similar protection under other trademark laws. For instance, Canada prohibits the unauthorized use of a trademark that depreciates the value of the goodwill associated with the mark.
Trademark dilution refers to the unauthorized use of a trademark that is likely to weaken the distinctiveness of or harm a famous mark. It involves the use of similar or identical trademarks in non-competing markets, which causes the trademark to lose its capacity to signify a single source. This means that the trademark in question will no longer be associated with just one product or company.
Dilution is different from trademark infringement, which involves the unauthorized use of a mark in connection with goods or services that are similar to those offered by the famous mark. In the case of dilution, the products or services may be in unrelated markets. For example, the use of "Ferrari" as a brand of harmonicas may not be trademark infringement, but it could be trademark dilution.
Dilution can be divided into two main types: blurring and tarnishment. Blurring occurs when a trademark becomes associated with multiple products in different markets, such as "Kodak shoes". Tarnishment refers to the weakening of a mark through unsavory or unflattering associations.
To establish trademark dilution, the owner of the famous mark must show that there is a likelihood of dilution, rather than actual dilution. The courts will consider several factors, including the fame of the trademark, to determine whether dilution has occurred.
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Trademarks Opposition Board
Canada's Trademarks Opposition Board (TMOB) is part of the Canadian Intellectual Property Office. The TMOB can be contacted via mail at the following address:
Canadian Intellectual Property Office
Place du Portage I
50 Victoria Street
Gatineau, QC K1A 0C9
The TMOB also provides an e-service, although service interruptions are sometimes in place. The TMOB returns all phone calls within 24 hours during normal business hours, from Monday to Friday. The toll-free number is 1-866-997-1936.
The TMOB has implemented new practices regarding case management, confidentiality orders, and cost awards, which came into force on April 1, 2025. These changes include the Registrar only implementing case management, issuing confidentiality orders, and awarding costs in exceptional circumstances.
In Canada, trademark owners can prevent others from using their trademarks to avoid confusion about the source of goods or services. However, in some cases, another party may use a trademark if it is considered "fair use". This exception is recognised worldwide, including in Canada, although the term "fair use" may not be explicitly stated in Canadian case law or statutes.
Fair use typically includes descriptive fair use and nominative fair use. Descriptive fair use allows the use of a trademark to describe a product or service, rather than indicating its source. For example, using a geographical name relating to a business location is generally considered fair use. Nominative fair use, on the other hand, allows the use of a trademark as a reference to compare or describe another product. For instance, an independent auto repair shop specialising in Volkswagens can mention that in their advertising as long as they do not imply any business relationship with Volkswagen.
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Frequently asked questions
Fair dealing is a statutory exception to copyright infringement in Canada. It is also referred to as a user's right, as opposed to an owner's right.
There are two types of fair use: descriptive fair use and nominative fair use. Descriptive fair use permits the use of another's trademark to describe a product or service, rather than to indicate the source of the goods or services. Nominative fair use, on the other hand, allows the use of a trademark as a reference to describe or compare a product or service.
To qualify as fair use in Canada, the use must be for a listed purpose, such as research, private study, education, satire, parody, criticism, review, or news reporting. Additionally, the use must be considered fair, and in the case of criticism, review, or news reporting, the source and author of the original work must be mentioned.
Trademarks are considered different from patents and copyrights as they do not require creativity or imagination. Trademarks are primarily commercial devices, and trademark law is considered consumer protection legislation.
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