1E9Ct5D

By registering a trade-mark in theTrade-mark Registry in accordancewith the Trade-marks Act (registeredtrade-mark rights); orBy using a trade-mark in themarketplace (unregistered orcommon law trade-mark rights).Common law trade-mark rights are createdover time by the continued use of a trademarkin association with goods or servicesin a geographic area. The strength of theserights will depend on the public recognitionof the association between the trade-markand the goods or services being sold.Common law trade-mark rights are onlyprotected within the geographical areaswhere the goods or services are marketed.Notwithstanding the existence of basiccommon law trade-mark rights acquiredthrough use, securing registered trade-markstatus is always recommended. Registrationis primary evidence of ownership andbecomes very useful in the event of aninfringement dispute. In such a dispute, theregistered owner does not have to proveownership; the onus is on the partychallenging the owner’s rights to prove thatthe registered owner does not have the rightto register or use the trade-mark. Use of anunregistered trade-mark can lead to alengthy and expensive legal dispute overwho has the right to use it.Registered trade-mark rights give the ownerthe exclusive right to the use of the trademarkin Canada, in respect of the goodsand services associated with it, and the rightto prevent others from using the same orconfusingly similar marks for a period of 15years, which can be renewed indefinitely.The registration process takesapproximately 18 to 24 months providedthat no objections are raised by the Registryand that no third party opposition to thetrade-mark registration application arises.However, using a trade-mark prior toobtaining registration is very common andacceptable provided that adequatesearching has been done to ensure that thetrade-mark is not already being used bysomeone else and can be eventuallyregistered.Losing Trade-mark RightsTrade-mark registrations may be renewedindefinitely subject to the continued use ofthe mark. A failure to use a trade-mark mayexpose a trade-mark owner to anexpungement proceeding which, ifsuccessful, would result in the removal ofthe mark from the Registry. A failure to usea common law trade-mark erodes thestrength and goodwill of the trade-mark andmakes it more difficult to enforce againstothers.It is also possible to lose a trade-mark rightif the distinctiveness of the mark is lost andit becomes “generic”. Examples of trademarksthat have become generic in somejurisdictions include “Thermos”, “Aspirin”and “Margarine”. It is incumbent upon atrade-mark owner to watch out for andprevent infringements of its trade-markrights and enforce those rights to avoidlosing distinctiveness of the mark.Infringing Trade-markUsing another party’s trade-mark or using amark that is confusingly similar to anotherparty’s trade-mark (e.g. “Appled Computers”vs. “Apple Computers”) constitutes trade-Intellectual Property 78