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Trademarking 101

Trademarking 101

What is a trademark?

A trademark is defined as letters, words, sounds, or designs that are used to distinguish one company’s goods and/or services from another. Over time a trademark evolves from representing goods and services to also representing the reputation of the company.

Types of trademarks

Ordinary trademark: includes words, designs, tastes, textures, moving images, mode of packaging, holograms, sounds, scents, 3D shapes, colours, or a combination of these are used to differentiate your goods and/or services from other companies.

Certification mark: can be licensed to multiple people or companies. They are used for the purpose of demonstrating that certain goods/services meet a defined standard.

What isn’t a trademark?

It is important to make sure that you don’t confuse other forms of intellectual property.

  • Patents: are for new and useful inventions or for improvements to existing inventions
  • Copyright: is used to provide protection for literary, artistic, dramatic, or musical works
  • Industrial designs: are visual features of shape, configuration, pattern, or ornament, applied to a finished product
  • Integrated circuit topographies: 3D configurations of electronic circuits embedded in products or layout designs

Trade name v. trademark

You should also be aware of the difference between a trade name and a trademark. A trade name is the name of your company and it can be registered provincially or federally. It is possible for a trade name to be registered as a trademark but only it is used to identify goods/services that your company provides.

Registered v. unregistered trademarks

In order to register your trademark it must be entered onto the Register of Trademarks. Once registered, you have the exclusive right to use the trademark for 10 years and it can be renewed every 10 years. It must be noted that if you do not use the trademark for an extended period of time, your registration can be taken off the Register. 

However, it is not mandatory to register your trademark. It is possible that you may acquire rights to use that trademark under the common law, depending on how long you have previously used it. Not registering your trademark can result in expensive legal battles in the case that there is a dispute regarding who has the right to use it.

What to consider before filing an application

When you are deciding to file for a trademark, you should make note of certain things that you cannot trademark, like: names/surnames, descriptive words about your goods/service, place of origin of your goods/service, or words in other languages.

It is also a good idea to search the Canadian Trademarks Database to ensure there is no possibility for your trademark to get confused with someone else’s. This is not a required step, but it could save you time and money down the line if your trademark is similar to an existing one.

In addition to searching trademarks, it is recommended that you search trade names. As mentioned above, they can be used as trademarks and may not be registered.

If you are considering putting together an application for a trademark, you should speak with a legal professional who can help with the application process and ensure your paperwork is in order. If you have any questions you can leave a comment below or call to book a consultation.

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