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INTELLECTUAL PROPERTY RIGHTSNATIONAL LEGISLATION - CANADA An Act relating to trade-marks and unfair competitionTrade-marks Act CHAPTER T-13 An Act relating to trade-marks and unfair competition Short title 1. This Act may be cited as the Trade-marks Act. R.S., c. T-10, s. 1. 2. In this Act, "certification mark" �marque de certification� "certification mark" means a mark that is used for the purpose of
distinguishing or so as to distinguish wares or services that are of a defined standard
with respect to the character or quality of the wares or services, the working conditions under which the wares have been produced or the services performed, the class of persons by whom the wares have been produced or the services performed, or the area within which the wares have been produced or the services performed, from wares or services that are not of that defined standard; "confusing" �cr�ant de la confusion� "confusing", when applied as an adjective to a trade-mark or trade-name, means a trade-mark or trade-name the use of which would cause confusion in the manner and circumstances described in section 6; "Convention" �Convention� "Convention" means the Convention of the Union of Paris made on March 20, 1883 and any amendments and revisions thereof made before or after July 1, 1954 to which Canada is party; "country of origin" �pays d'origine� "country of origin" means the country of the Union in which the applicant for registration of a trade-mark had at the date of the application a real and effective industrial or commercial establishment, or if the applicant for registration of a trade-mark did not at the date of the application have in a country of the Union an establishment as described in paragraph (a), the country of the Union where he on that date had his domicile, or if the applicant for registration of a trade-mark did not at the date of the application have in a country of the Union an establishment as described in paragraph (a) or a domicile as described in paragraph (b), the country of the Union of which he was on that date a citizen or national; "country of the Union" � pays de l'Union � "country of the Union" means any country that is a member of the Union for the Protection of Industrial Property constituted under the Convention, or any WTO Member; "distinctive" �distinctive� "distinctive", in relation to a trade-mark, means a trade-mark that actually distinguishes the wares or services in association with which it is used by its owner from the wares or services of others or is adapted so to distinguish them; "distinguishing guise" �signe distinctif� "distinguishing guise" means a shaping of wares or their containers, or a mode of wrapping or packaging wares the appearance of which is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others; "geographical indication" � indication g�ographique � "geographical indication" means, in respect of a wine or spirit, an
indication that identifies the wine or spirit as originating in the territory of a WTO Member, or a region or locality of that territory, where a quality, reputation or other characteristic of the wine or spirit is essentially attributable to its geographical origin, and except in the case of an indication identifying a wine or spirit originating in Canada, is protected by the laws applicable to that WTO Member; "owner" �propri�taire� "owner", in relation to a certification mark, means the person by whom the defined standard has been established; "package" �paquet� ou �colis� "package" includes any container or holder ordinarily associated with wares at the time of the transfer of the property in or possession of the wares in the course of trade; "person" �personne� "person" includes any lawful trade union and any lawful association engaged in trade or business or the promotion thereof, and the administrative authority of any country, state, province, municipality or other organized administrative area; "person interested" �personne int�ress�e� "person interested" includes any person who is affected or reasonably apprehends that he may be affected by any entry in the register, or by any act or omission or contemplated act or omission under or contrary to this Act, and includes the Attorney General of Canada; "prescribed" �prescrit� "prescribed" means prescribed by or under the regulations; "proposed trade-mark" �marque de commerce projet�e� "proposed trade-mark" means a mark that is proposed to be used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others; "protected geographical indication" � indication g�ographique prot�g�e � "protected geographical indication" means a geographical indication that is on the list kept pursuant to subsection 11.12(1); "register" �registre� "register" means the register kept under section 26; "registered trade-mark" �marque de commerce d�pos�e� "registered trade-mark" means a trade-mark that is on the register; "registered user" [Repealed, 1993, c. 15, s. 57] "Registrar" �registraire� "Registrar" means the Registrar of Trade-marks appointed under section 63; "related companies" �compagnies connexes� "related companies" means companies that are members of a group of two or more companies one of which, directly or indirectly, owns or controls a majority of the issued voting stock of the others; "representative for service" �repr�sentant pour signification� "representative for service" means the person or firm named under paragraph 30(g), subsection 38(3), paragraph 41(1)(a) or subsection 42(1); "trade-mark" �marque de commerce� "trade-mark" means a mark that is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others, a certification mark, a distinguishing guise, or a proposed trade-mark; "trade-name" �nom commercial� "trade-name" means the name under which any business is carried on, whether or not it is the name of a corporation, a partnership or an individual; "use" �emploi� ou �usage� "use", in relation to a trade-mark, means any use that by section 4 is deemed to be a use in association with wares or services; "wares" �marchandises� "wares" includes printed publications; "WTO Agreement" � Accord sur l'OMC � "WTO Agreement" has the meaning given to the word "Agreement" by subsection 2(1) of the World Trade Organization Agreement Implementation Act; "WTO Member" � membre de l'OMC � "WTO Member" means a Member of the World Trade Organization established by Article I of the WTO Agreement. R.S., 1985, c. T-13, s. 2; 1993, c. 15, s. 57; 1994, c. 47, s. 190. 3. A trade-mark 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 in Canada or, if that person or his predecessor had not previously so used it or made it known, when that person or his predecessor filed an application for its registration in Canada. R.S., c. T-10, s. 3. 4. (1) A trade-mark is deemed to be used in association with wares if, at the time of the transfer of the property in or possession of the wares, in the normal course of trade, it is marked on the wares themselves or on the packages in which they are distributed or it is in any other manner so associated with the wares that notice of the association is then given to the person to whom the property or possession is transferred. Idem (2) A trade-mark is deemed to be used in association with services if it is used or displayed in the performance or advertising of those services. Use by export (3) A trade-mark that is marked in Canada on wares or on the packages in which they are contained is, when the wares are exported from Canada, deemed to be used in Canada in association with those wares. R.S., c. T-10, s. 4. 5. A trade-mark 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 wares or services, and the wares are distributed in association with it in Canada, or the wares or services are advertised in association with it in any printed publication circulated in Canada in the ordinary course of commerce among potential dealers in or users of the wares or services, or radio broadcasts ordinarily received in Canada by potential dealers in or users of the wares or services, and it has become well known in Canada by reason of the distribution or advertising. R.S., c. T-10, s. 5. 6. (1) For the purposes of this Act, a trade-mark or trade-name is confusing with another trade-mark or trade-name if the use of the first mentioned trade-mark or trade-name would cause confusion with the last mentioned trade-mark or trade-name in the manner and circumstances described in this section. Idem (2) The use of a trade-mark causes confusion with another trade-mark if the use of both trade-marks in the same area would be likely to lead to the inference that the wares or services associated with those trade-marks are manufactured, sold, leased, hired or performed by the same person, whether or not the wares or services are of the same general class. Idem (3) The use of a trade-mark causes confusion with a trade-name if the use of both the trade-mark and trade-name in the same area would be likely to lead to the inference that the wares or services associated with the trade-mark and those associated with the business carried on under the trade-name are manufactured, sold, leased, hired or performed by the same person, whether or not the wares or services are of the same general class. Idem (4) The use of a trade-name causes confusion with a trade-mark if the use of both the trade-name and trade-mark in the same area would be likely to lead to the inference that the wares or services associated with the business carried on under the trade-name and those associated with the trade-mark are manufactured, sold, leased, hired or performed by the same person, whether or not the wares or services are of the same general class. What to be considered (5) In determining whether trade-marks or trade-names are confusing, the court or the Registrar, as the case may be, shall have regard to all the surrounding circumstances including the inherent distinctiveness of the trade-marks or trade-names and the extent to which they have become known; the length of time the trade-marks or trade-names have been in use; the nature of the wares, services or business; the nature of the trade; and the degree of resemblance between the trade-marks or trade-names in appearance or sound or in the ideas suggested by them. R.S., c. T-10, s. 6.
UNFAIR COMPETITION AND PROHIBITED MARKS
7. No person shall make a false or misleading statement tending to discredit the business, wares or services of a competitor; direct public attention to his wares, services or business in such a way as to cause or be likely to cause confusion in Canada, at the time he commenced so to direct attention to them, between his wares, services or business and the wares, services or business of another; pass off other wares or services as and for those ordered or requested; make use, in association with wares or services, of any description that is false in a material respect and likely to mislead the public as to the character, quality, quantity or composition, the geographical origin, or the mode of the manufacture, production or performance of the wares or services; or do any other act or adopt any other business practice contrary to honest industrial or commercial usage in Canada. R.S., c. T-10, s. 7. 8. Every person who in the course of trade transfers the property in or the possession of any wares bearing, or in packages bearing, any trade-mark or trade-name shall, unless before the transfer he otherwise expressly states in writing, be deemed to warrant, to the person to whom the property or possession is transferred, that the trade-mark or trade-name has been and may be lawfully used in connection with the wares. R.S., c. T-10, s. 8. 9. (1) No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for, (a) the Royal Arms, Crest or Standard; (b) the arms or crest of any member of the Royal Family; (c) the standard, arms or crest of His Excellency the Governor General; (d) any word or symbol likely to lead to the belief that the wares or services in association with which it is used have received, or are produced, sold or performed under, royal, vice-regal or governmental patronage, approval or authority; (e) the arms, crest or flag adopted and used at any time by Canada or by any province or municipal corporation in Canada in respect of which the Registrar has, at the request of the Government of Canada or of the province or municipal corporation concerned, given public notice of its adoption and use; (f) the emblem of the Red Cross on a white ground, formed by reversing the federal colours of Switzerland and retained by the Geneva Convention for the Protection of War Victims of 1949 as the emblem and distinctive sign of the Medical Service of armed forces and used by the Canadian Red Cross Society, or the expression "Red Cross" or "Geneva Cross"; (g) the emblem of the Red Crescent on a white ground adopted for the same purpose as specified in paragraph (f) by a number of Moslem countries; (h) the equivalent sign of the Red Lion and Sun used by Iran for the same purpose as specified in paragraph (f);
(i) any territorial or civic flag or any national, territorial or civic arms, crest or emblem, of a country of the Union, if the flag, arms, crest or emblem is on a list communicated under article 6ter of the Convention or pursuant to the obligations under the Agreement on Trade-related Aspects of Intellectual Property Rights set out in Annex 1C to the WTO Agreement stemming from that article, and the Registrar gives public notice of the communication;
(j) any scandalous, obscene or immoral word or device; (k) any matter that may falsely suggest a connection with any living individual; (l) the portrait or signature of any individual who is living or has died within the preceding thirty years; (m) the words "United Nations" or the official seal or emblem of the United Nations; (n) any badge, crest, emblem or mark adopted or used by any of Her Majesty's Forces as defined in the National Defence Act, of any university, or adopted and used by any public authority, in Canada as an official mark for wares or services, in respect of which the Registrar has, at the request of Her Majesty or of the university or public authority, as the case may be, given public notice of its adoption and use;
(o) the name "Royal Canadian Mounted Police" or "R.C.M.P." or any other combination of letters relating to the Royal Canadian Mounted Police, or any pictorial representation of a uniformed member thereof. (2) Nothing in this section prevents the adoption, use or registration
as a trade-mark or otherwise, in connection with a business, of any mark 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 consisting of, or so nearly resembling as to be likely to be mistaken for an official sign or hallmark mentioned in paragraph (1)(i.1), except in respect of wares that are the same or similar to the wares in respect of which the official sign or hallmark has been adopted, or an armorial bearing, flag, emblem or abbreviation mentioned in paragraph (1)(i.3), unless the use of the mark is likely to mislead the public as to a connection between the user and the organization. R.S., 1985, c. T-13, s. 9; 1990, c. 14, s. 8; 1993, c. 15, s. 58; 1994, c. 47, s. 191. 10. Where any mark has by ordinary and bona fide commercial usage become recognized in Canada as designating the kind, quality, quantity, destination, value, place of origin or date of production of any wares or services, no person shall adopt it as a trade-mark in association with such wares or services or others of the same general class or use it in a way likely to mislead, nor shall any person so adopt or so use any mark so nearly resembling that mark as to be likely to be mistaken therefor. R.S., c. T-10, s. 10. 10.1 Where a denomination must, under the Plant Breeders' Rights Act, be used to designate a plant variety, no person shall adopt it as a trade-mark in association with the plant variety or another plant variety of the same species or use it in a way likely to mislead, nor shall any person so adopt or so use any mark so nearly resembling that denomination as to be likely to be mistaken therefor. 1990, c. 20, s. 79. 11. No person shall use in connection with a business, as a trade-mark or otherwise, any mark adopted contrary to section 9 or 10 of this Act or section 13 or 14 of the Unfair Competition Act, chapter 274 of the Revised Statutes of Canada, 1952. R.S., c. T-10, s. 11. 11.1 No person shall use in connection with a business, as a trade-mark or otherwise, any denomination adopted contrary to section 10.1. 1990, c. 20, s. 80. 11.11 In sections 11.12 to 11.2, "Minister" � ministre � "Minister" means the member of the Queen's Privy Council for Canada designated as the Minister for the purposes of sections 11.12 to 11.2; "responsible authority" � autorit� comp�tente � "responsible authority" means, in relation to a wine or spirit, the person, firm or other entity that, in the opinion of the Minister, is, by reason of state or commercial interest, sufficiently connected with and knowledgeable of that wine or spirit to be a party to any proceedings in respect of an objection filed under subsection 11.13(1). 1994, c. 47, s. 192. 11.12 (1) There shall be kept under the supervision of the Registrar a list of geographical indications. (2) Where a statement by the Minister, setting out in respect of an
indication the information mentioned in subsection (3), is published in the Canada Gazette
and a statement of objection has not been filed and served on the responsible authority in accordance with subsection 11.13(1) and the time for the filing of the statement of objection has expired, or a statement of objection has been so filed and served, but it has been withdrawn or deemed under subsection 11.13(6) to have been withdrawn or it has been rejected pursuant to subsection 11.13(7) or, if an appeal is taken, it is rejected pursuant to the final judgment given in the appeal, the Registrar shall enter the indication on the list of geographical indications kept pursuant to subsection (1). (3) For the purposes of subsection (2), the statement by the Minister
must set out the following information in respect of an indication: that the Minister proposes that the indication be entered on the list of geographical indications kept pursuant to subsection (1); that the indication identifies a wine or that the indication identifies a spirit; the territory, or the region or locality of a territory, in which the wine or spirit is identified as originating; the name of the responsible authority in relation to the wine or spirit and the address of the responsible authority's principal office or place of business in Canada, if any, and 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 service of any document or proceedings in respect of an objection may be given or served with the same effect as if they had been given to or served on the responsible authority itself; and the quality, reputation or other characteristic of the wine or spirit that, in the opinion of the Minister, qualifies that indication as a geographical indication. (4) The Registrar shall remove an indication from the list of geographical indications kept pursuant to subsection (1) on the publication in the Canada Gazette of a statement by the Minister that the indication is to be removed. 1994, c. 47, s. 192.
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