A trademark can be a word, design, symbol, or even a sound, texture, or smell that distinguishes the source of your goods or services from those of competitors. Formal registration of your trademark with the Canadian Intellectual Property Office provides much stronger, expanded protection over the limited protections available to unregistered trademarks. This protection is governed by the Trademarks Act which sets out the rules for what can and cannot be formally registered as a trademark in Canada.

The big question for business owners then becomes: Is the trademark associated with my goods and services registrable?

General Rules of Registration

Generally, a trademark can be registered if it complies with the requirements set out in section 12 of the Trademarks Act. This means ordinarily, for your trademark to be registrable, it must:

  • not primarily be the name or surname of an individual,
  • it cannot be descriptive or deceptively misdescriptive of the nature of the goods or services associated with its use,
  • it cannot be the name of the goods or services for which it is associated in another language, and
  • it cannot be confusingly similar to an already registered trademark.

For example, a mark like “Ben’s Delicious Burgers” associated with lunch sandwiches would be difficult to register. The word “Ben” is primarily a person’s name, and “Delicious” clearly describes the character of the goods associated with the mark.

Distinctiveness Exception

Exceptions to the general rules outlined above do exist. One of these exceptions is that a mark is registrable if it has acquired distinctiveness, even if it is a name or is descriptive or misdescriptive of the goods or services with which it is associated. That means that if the trademark “Ben’s Delicious Burgers” becomes distinctive and famous as an indicator of the source of a particular quality of lunch sandwich, then the trademark may be registrable.

The Gold Standard: Coined Terms

The best and most successful trademarks are typically coined words or terms that are wholly invented, have little or no meaning outside of their use, and that follow the rules for registrability set out in the Trademarks Act. Some famous examples of such successful trademarks include “Adidas”, “Nike”, “Pepsi” and “Google”. These are words that have no meaning outside of their use as indicators of the source of their respective goods and/or services.

Protect Your Brand with Registration

Ultimately, securing a registered trademark is a powerful step toward protecting your brand’s identity and long-term value. While the rules surrounding what you can and cannot register might seem restrictive, they are designed to keep the marketplace fair and ensure that your brand stands out. When developing a new brand or product line, aiming for originality such as invented words will always offer the strongest legal protection and the smoothest path to trademark registration. If you are unsure whether your current or proposed trademark is registrable, or if you would like legal advice relating to protecting your business’ brand, reach out to our firm for a consultation.



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