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Trade-Marks and Copyright: Valuable Business Assets Worthy of Protection

Quite often people hear the terms trade-mark and copyright, but are unsure what they mean. While both trade-marks and copyright are types of intellectual property each is different from the other.

Trade-marks
A trade-mark is a word, symbol, design (or a combination of these features), used to distinguish the wares or services of one person from those of others in the marketplace. Trade-marks identify the source of the wares or services associated with the mark. Examples of trade-marks include Pepsi, Kleenex and Nike.

Trade-marks are valuable business assets. They represent the actual wares and services as well as the reputation of the producer or supplier.

By registering a trade-mark, the owner’s ability to protect the mark is enhanced. First, registration gives notice to the world of the owner’s rights in the mark. When persons select a trade-mark they will often conduct a search within the Canadian Intellectual Property Office to locate potentially confusing marks. Thus, persons selecting trade-marks will avoid using a mark that is likely to be confused with a mark that is already registered.

Second, registration of a trade-mark gives the owner the exclusive right to use the trade-mark, in association with the wares and/or services, throughout Canada for 15 years from the date of registration. The registration is renewable every 15 years thereafter.

Third, registration is prima facie evidence of the ownership of the trade-mark because the registration is presumed to be valid unless proven invalid. Thus, in a legal dispute, a person does not have to prove ownership of the trade-mark.

Fourth, the owner of the registered trade-mark may also prohibit its use in any manner that is likely to depreciate the value of the goodwill attaching to the trade-mark. Goodwill is the reputation that is connected to the goods or services that causes customers to return and repurchase the same goods or services.

The right of the registered owner to exclusively use the trade-mark is infringed when someone uses the exact same trade-mark as the registered owner or uses a confusingly similar trade-mark to that of the registered owner.

Trade-marks represent the image and reputation of a business and are, therefore, valuable business assets that should be protected through registration.

Copyright
In Canada, copyright is governed by the Copyright Act. Copyright protects original literary, artistic, musical and dramatic works. Examples of works which are entitled to copyright protection in Canada include: books, newspapers, advertisements, logos, computer software and sound recordings.

Generally, the author is the first owner of copyright. However, there are some exceptions to this general principle. For example, when an employee creates a work in the course of his or her employment, the copyright is owned by the employer.

A copyright owner has the exclusive right to control the work’s (a) reproduction, in whole or substantial part, in any material form, (b) public performance, (c) public telecommunication, (d) publication, (e) translation and (f) adaptation. The owner may also prohibit the distribution of unlawful copies.

Copyright comes into existence automatically, at the time the work is created, and, in most cases, it continues until the end of the calendar year in which the author of the work dies and continues for an additional period of 50 years.

There are many benefits to registering a copyright in Canada. The registration certificate is evidence that the work is protected by copyright and that the person registered is the owner. In the event of a legal dispute, the person does not have to prove ownership. Also, a registration gives public notice of an owner’s rights and may prevent an innocent infringement defence by unauthorized users of the work.

Copyright infringement occurs whenever a person exercises any of the copyright owner’s exclusive rights without consent.

A notice containing the year of first publication and the owner’s name should be placed on all published copies of a work to give public notice of the rights. For example, “© Jones Ltd., 1996. All Rights Reserved”. This notice may be used regardless of whether copyright is registered. The notice should be displayed so that reasonable notice of the claim of copyright in the work is given to the public.

Article Disclaimer

This article provides a general description of trade-mark and copyright law in Canada. The contents of this article are provided for general information purposes only. The article does not provide or constitute legal advice and should not be relied upon as such. Any person with a specific legal question or legal problem is encouraged to seek the advice of a qualified lawyer.

Note: The Copyright Act and Trademark Act were used as resources in writing this article

Thanks Barbara

BARBARA BIDNER
Barbara Bidner is an Ontario lawyer. She is the owner of Barbara Bidner Law Office. She was called to the Ontario bar in 1989. She became a registered trade-mark agent in Canada in 1993. Her telephone number is 519-474-4839 and her facsimile number is 519-474-4025.

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