Intellectual Property Law

Patents

A patent is the grant to a patentee, or inventor, of an exclusive right, privilege and liberty of making, constructing or using the invention and selling it to others to be used.

In Canada the legal owner of an invention can obtain a patent by submitting a patent application and the appropriate fee to the Commissioner of Patents at the Canadian Intellectual Property Office. This application will then be rigorously reviewed (i.e. examined) by the Canadian Intellectual Property Office. Patent agents, which are professionals with experience in drafting applications and navigating the patent process, can often make this application process much easier and help ensure that you get all of the rights to which you are entitled.

Unless you are able to protect your invention by keeping it a secret, generally the only way to protect your invention is by way of a patent. In order to have patent protection, you must apply for and receive a patent. Since patent laws are national, you must obtain patent protection in each country in which you want protection.

For more information on patents, see: canapat.com

Trademarks

A trade-mark can consist of a word, slogan, logo, symbol, design or any combination thereof, adopted and used by a manufacturer or merchant to identify his or her goods or services and to distinguish them from those manufactured and sold by others. Examples are everywhere you look: the words “Coca Cola” and the Nike “swoosh” are but just two.

It is the “good will” which gives a trade-mark value and keeps the consumers interested in purchasing one manufacturer’s products over another. A trade-mark generally indicates the source of the goods and services, although it may also indicate that the goods or services meet the same standard of quality as all other goods or services associated with the mark.

Trade-mark registration is not necessary in order to use it. It is advisable, however, to conduct a trade-mark availability search to see if no one else has prior rights to the mark, before you begin using it. Assuming that no one has prior rights to the mark, your trade-mark becomes established as soon as you have begun to properly use it; and it is enforceable against infringers through the common law action for “passing off”.

However, an action for “passing off” has a number of disadvantages and limitations when compared to trade-mark infringement of a registered mark, including that it is restricted in geographical scope to only those regions where you have a reputation or recognition.

A trade-mark registration provides you with a number of considerable advantages, and it is worth considering before significant investments are made in advertising, signs, websites, letterhead and labels. Registration will also provide you with additional grounds to stop an infringer and may be key in winning a legal battle.

Copyrights

Copyright is the exclusive right to copy a creative work or to allow someone else to do so. It includes the sole right to publish, produce or reproduce, to perform in public, to communicate a work to the public by telecommunication, to translate a work, and in some instances to rent the work.

You acquire copyright automatically when you create an original work. No additional steps or registrations are required. In Canada a notice of copyright is not necessary, but a notification according to the Universal Copyright Convention may be necessary to extend protection to some other countries.

The Copyright Act provides for an automatic copyright protection upon the publication of a work. However, there are several important advantages when you register a copyright with the Canadian Intellectual Property Office.

Although the author or the owner of a copyright may apply for registration, please be aware that copyright law is technical. A lawyer practicing in the area of copyrights can significantly simplify the application process for you, as well as provide legal advise regarding your particular situation.