By Colleen Spring Zimmerman

On June 17, 2019, Canada’s Trademarks Act changed, resulting in its modernization. Canada has now joined five international intellectual property treaties, including the Madrid Protocol, Singapore Treaty and the Nice Agreement, all related to trademarks.

There has been a great deal of activity to get ready for the changes. To implement the changes, the Canadian Trademarks Office had to update its technology, hire and train new staff and modify its processes and procedures

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. It also held national training events and webinars to inform the public. Lawyers and agents who work in the trademark field have had to alter their processes and procedures and learn about the consequences.

Here are the highlights:

The definition of “trademark” has been broadened. The new definition includes a word, personal name, design, letter, numeral, a colour, figurative element, three-dimensional shape, hologram, moving image, mode of packaging goods, sound, scent, taste, texture and the positioning of a sign. Canadians can now be innovative in the type of trademarks they protect. Therefore, applications can be filed, and registrations obtained, for this broader array, which can give Canadian businesses broader trademark rights with their registrations. Canadians should consider expanding their portfolios of registered marks;

Removal of the “use” requirement. This is significant as the requirement to allege use had been fundamental to obtaining registration. A trademark application and subsequent registration now do not have to include any claim to use of the trademark in Canada or elsewhere in the world. As well, the applicant (e.g. individual, domestic company or foreign company) can obtain registration of the mark without proving any use of the mark. This means that any applicant filing in Canada can obtain registration for a trademark regardless of whether it has used the mark in Canada. This could result in “brand trolls” trying to take the rights of legitimate brand owners, which have not moved to obtain registration of their rights. This will result in the legitimate brand owners having to be more proactive in terms of registering and protecting their brands;

Preparing a trademark application where there are many goods and services associated with the mark is more complicated. The goods and services must now be classified according to the Nice Agreement, an international treaty administered by the World Intellectual Property Organization or WIPO. The Nice Classification defines 45 Classes of goods and services. There are 34 Classes for goods and 11 Classes for services. The trademark application must set out the goods and services in these Classes;

Filing trademark applications costs more. The base government filing fee is now $330 for one Class of goods or services and $100 for each additional Class of goods and services. Therefore, a trademark application that is filed for a number of goods and services in various Classes will result in government filing fees that are higher than prior to June 17; and

The trademark registration renewal time has been shortened and fees increased. Before June 17, 2019, a Canadian trademark registration was valid for 15 years. Now each registration must be renewed within 10 years of the date of registration. The renewal fee is now $400 for one Class and $125 for each additional Class. If these fees are not paid, the registration is cancelled; and
The number of Opposition Proceedings may increase. The above changes are and will be affecting other aspects of the trademark process. Each application (once it has passed examination by a Trademarks Office examiner) is advertised in the Trademarks Journal for the purposes of opposition. Any member of the public may oppose the registration of that mark. In Opposition Proceedings, the opponent sets out the reason why it objects to registration of the mark. The possible grounds for opposition are set out in the Trademarks Act and can include previous use of the trademark or a similar trademark by the opponent. Brand owners will need to monitor applications as they are advertised. In the future, there may be more Opposition Proceedings to trademark applications as brand owners move to protect their pre-existing rights.

For the last year or so, applications for trademark registration have been taking longer to process as the Trademarks Office has been ramping up to implement the processes and procedures necessary for these changes. These delays have been anywhere from months to a year. This will continue for some time.

The Madrid Protocol
Through these changes, Canada has joined the Madrid Protocol. Canadians can now file trademark applications for protection of their marks outside Canada with the WIPO, which also administers the Madrid System.

Previously, Canadians seeking to protect their marks in foreign countries or geographical areas had to file applications in each country/area individually. Now, Canadian applicants can file for trademark protection in a number of countries or geographical areas by filing one application and paying one set of fees to WIPO to obtain an international registration, which is a bundle of national registrations.

Currently, the Madrid System has 103 members, covering 119 countries, representing more than 80% of world trade. Obtaining registration through the Madrid Protocol processes results in one registration to renew, which may be renewed every 10 years with the payment of one fee. Having access to this system is a great benefit to Canadians interested in protecting their marks outside Canada.

Before the changes came into effect, the Canadian Marketing Association held its “Future-Proof Your Brand – Trademark Changes In Canada” event on March 27, 2019 to educate its members. Trademark and brand experts spoke on these changes and needed future steps for protecting marks in Canada.

Colleen Spring Zimmerman practices intellectual property law including trademark law at Fogler Rubinoff LLP (http://foglers.com) in Toronto, Ont. You can contact Colleen at cspringzimmerman@foglers.com.

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