Trademark Insurance 101
A trademark is a mark that is used by a person for the purpose of distinguishing wares or services manufactured, sold, leased, hired, or otherwise entered into commerce from others in the marketplace. Canadian federal law and common law allows for the protection of trademarks.
Intellectual property refers to the many intangible assets of a business, such as trademarks, trade secrets, patents, and copyrights. Similar to products, goods or services, while intellectual property assets such trademarks and trade secrets are highly valuable they are often misunderstood assets.
While the intention of this overview is to provide a basic understanding of intellectual property such as trademarks and trade secrets, it should not be considered legal advice in anyway.
How Does Trademark Protection Work?
The scope of the protection can vary widely, depending on the strength and fame of a mark. For instance, many brand names are famous marks that are very strong. The length of time that a mark can be protected is indefinite because it is based upon use, but registered marks in Canada have an initial term of 15 years. A mark may be renewed in successive 15-year increments as long as the mark is still in use.
Related matters: The Canadian Intellectual Property Office provides detailed information on all aspects of trademarks.
What Determines Trademark Infringement?
Whether a trademark has been infringed is most often dependent upon whether a likelihood of confusion has been found. In determining whether there is a likelihood of confusion, courts generally look at factors like the inherent distinctiveness of the marks, the extent to which the marks are known, the time the marks have been in use, the nature of the goods or services associated with the marks and the degree of resemblance between the marks.
What If Someone Infringes Your Trademark?
Remedies are available for trademark infringement under both federal law and common law. After a finding of infringement, damages can include, but are not limited to, a temporary or permanent injunction, damages and legal costs.
Related matters: Is Your Brand Protected?
What’s Considered A Trade Secret?
A trade secret is any information that is or may be used in business that is not generally common knowledge in that trade or business. The information must also have economic value because it is not common knowledge in the trade or business and the holder of the information must make efforts to keep it from becoming generally known.
What If A Trade Secret Is Misappropriated?
The owner of the trade secret must prove that a misappropriator owed an express or implied duty of confidentiality or some other fiduciary duty to the owner, or that the misappropriator obtained the trade secret through some improper means.
A lawsuit may be filed for trade secret infringement, depending upon the circumstances. Individuals may be subject to injunctions, may be ordered to pay damages and will be subject to any other remedy the court finds appropriate if convicted.
Trademark Insurance Can Protect Your Business Intellectual Property
Trademarks and trade secrets are integral parts of your business. It is vital that you understand the laws associated with these concepts to protect your intellectual property. You also need to ensure that your behaviour does not infringe on someone else’s intellectual property. This piece is not exhaustive and should be read as an overview. For more information, consult legal counsel.