Trade-marks are registered in Canada in the Department of Agriculture.
The Canadian law recognizes two kinds of trade-marks, viz.: General Trade-marks and Specific Trade-marks. These two kinds of marks require separate registrations.
A "general trade-mark" means a trade-mark used in connection with the sale of various articles in which a proprietor deals in his trade, business, occupation or calling generally.
A "specific trade-mark" means a trade-mark used in connection with the sale of a class of merchandise of a particular description.
Corticelli, SPOOL SILKThe Corticelli kitten is both a trade-mark and an advertising character.
The Corticelli kitten is both a trade-mark and an advertising character.
The Corticelli kitten is both a trade-mark and an advertising character.
In this respect the Canadian and American trade-mark laws differ materially. The American law does not recognize a "general" trade-mark—that is, a trade-mark applicable to any merchandise a manufacturer may produce, irrespective of its class. An American trade-mark is registered for use in connection with a specific product, or for use in connection with a class of merchandise, all the units of which have the same general descriptive qualities. The "specific trade-mark" of Canada corresponds closely to the American trade-mark.
The Canadian definition of a trade-mark is as follows:
"All marks, names, labels, brands, packages or other business devices, which are adopted for use by any person in his trade, business, occupation or calling, for the purpose of distinguishing any manufacture, product or article of anydescription manufactured, produced, compounded, packed or offered for sale by him, applied in any manner whatever either to such manufacture, product or article, or to any package, parcel, case, box or other vessel, or receptacle of any description whatsoever containing the same, shall, for the purposes of this Act, be considered and known as trade-marks."
"All marks, names, labels, brands, packages or other business devices, which are adopted for use by any person in his trade, business, occupation or calling, for the purpose of distinguishing any manufacture, product or article of anydescription manufactured, produced, compounded, packed or offered for sale by him, applied in any manner whatever either to such manufacture, product or article, or to any package, parcel, case, box or other vessel, or receptacle of any description whatsoever containing the same, shall, for the purposes of this Act, be considered and known as trade-marks."
The Trade-mark Act of Canada is more broad and liberal than the American Act, as is shown by this definition of trade-marks. Not only are marks, names, labels and brands considered trade-marks, but "packages" and "other business devices" are also included.
An applicant who seeks to register a trade-mark must state in his application whether the trade-mark is intended to be general or specific. If specific, a description of the merchandise on which it is to be used must be made a part of the application.
A general trade-mark, once registered, shall "endure without limitation."
The registration of a specific trade-mark expires in twenty-five years, but it may be renewed at the end of that period, and so on from time to time.
The registration fee for a general trade-mark is $30.00; for a specific trade-mark, $25.00.
The Minister of Agriculture may refuse to register a trade-mark for any one of the following reasons:
1st. If he is not satisfied that the applicant is undoubtedly entitled to the exclusive use of such trade-mark.2nd. If the trade-mark proposed for registration is identical with or resembles a trade-mark already registered.3rd. If it appears that a trade-mark is calculated to deceive or mislead the public.4th. If the trade-mark contains any immorality or scandalous figure.5th. If the so-called trade-mark does not contain the essentials necessary to constitute a trade-mark, properly speaking.
1st. If he is not satisfied that the applicant is undoubtedly entitled to the exclusive use of such trade-mark.
2nd. If the trade-mark proposed for registration is identical with or resembles a trade-mark already registered.
3rd. If it appears that a trade-mark is calculated to deceive or mislead the public.
4th. If the trade-mark contains any immorality or scandalous figure.
5th. If the so-called trade-mark does not contain the essentials necessary to constitute a trade-mark, properly speaking.
The "essentials necessary to constitute a trade-mark" are not defined by the law, an omission which means that the English common law definition of a valid trade-mark, as shown by the decisions of the courts, must be the basis on which eligibility to registration is based. No mark orsymbol which has a designating or descriptive quality may be registered.
When a descriptive word has been registered, through error of the registrar, it does not give the owner of the mark exclusive right to its use. As in the United States, registration is onlyprima facieevidence of validity.
AMERICAN SHEET & TIN PLATE CO., APOLLO, BEST BLOOM, TRADE MARK REGISTERED, PITTSBURGHA trade-mark used on sheet tin. It is affixed by stenciling.
A trade-mark used on sheet tin. It is affixed by stenciling.
A trade-mark used on sheet tin. It is affixed by stenciling.
The right to a trade-mark belongs to the first user of the mark. If it is registered by any other person than its first user, the registration may be set aside as invalid upon the production of proof of its prior use by any other person than the registrant.
The law states that "no person shall institute any proceeding to prevent the infringement of any trade-mark, unless such trade-mark is registered in pursuance of this act."
TRADE, ELASTICA, MARK, FLOOR FINISHA well-advertised trade-mark.
A well-advertised trade-mark.
A well-advertised trade-mark.
This provision of the law would seem to exclude actions based on the common law, but in practice the Canadian courts take cognizance of the doctrine of unfair trade. The prime requisite of registration before infringement proceedings can be instituted merely makes the mode of procedure different from that in the United States. The complainant must get his trade-mark registered before he begins his suit against the infringement. If the mark alleged to infringe has already been registered, the plaintiff moves to set the registration aside as invalid, and have his own mark registered instead of it.
A circular containing the full provisions of the Canadian law, with directions and forms for making an application for registration, may be obtained by any person who will write for it to the Minister of Agriculture, Ottawa, Canada.