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Trademark Infringement Lawyer Service

Our Intellectual Property Lawyers can assist you with defending your trademark if it becomes infringed. Our lawyers offer services across the Greater Toronto Area, including Mississauga, Oakville, Burlington, Milton, Brampton, Kitchener, Waterloo, Guelph, Hamilton, Vaughan, Newmarket, North York, Toronto and surrounding areas.  

A Trademark ("TM") can be defined in one of three ways:

  • An ordinary mark that is used by a person for the purpose of distinguishing or so as to distinguish goods or services manufactured, sold, leased, hired or performed by them from those manufactured, sold, leased, hired or performed by others.
  • A Certification mark that is used for the purpose of distinguishing or so as to distinguish goods or services that are of a defined standard with respect to:
    • the character or quality of the goods or services,
    • the working conditions under which the goods have been produced or the services performed,
    • the class of persons by whom the goods have been produced or the services performed, or
    • the area within which the goods have been produced or the services performed,
    from goods or services that are not of that defined standard.
  • A Distinguishing Guise, which is
    • the shaping of goods or their containers, or
    • a mode of wrapping or packaging goods
    the appearance of which is used by a person for the purpose of distinguishing or so as to distinguish goods or services manufactured , sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others.

In a nutshell, a Trademark is a mark that is used to distinguish your goods and/or services from those of others. As soon as you start using a trademark you obtain protection, however, that protection is limited to a certain geographical location. This type of Unregistered Trademark is referred to as a Common-Law Trademark. A Common-Law Trademark affords less protection throughout Canada than a Registered Trademark.

Trademark Infringement

Generally, trademark infringement occurs when marks are confusingly similar to each other. In determining whether there is a likelihood of confusion, the test is as a matter of first impression, the casual consumer somewhat in a hurry who encounters an allegedly infringing mark, with no more than an imperfect recollection of an original mark, would be likely to think that the allegedly infringing mark was the same source of goods or services as the original mark. Circumstances that must be considered are:

  • The inherent distinctiveness of the trademark and the extent to which they have become known.
  • The length of time the trademarks have been in use.
  • The nature of the goods, services or business.
  • The nature of the trade.
  • The degree of resemblance between the trademarks in appearance or sounds or in the ideas suggested by them.

Remedies

Remedies for trademark infringement include:

  • Accounting of Profits.
  • Damages.
  • Delivery and destruction of goods.
  • Injunction.

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