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A Wise Choice – New all-encompassing Trademark and Brand Protection Services from WISES

Effective brand development and protection goes far beyond trademark registration.  Intellectual property rights are just one element of a brand.  As a business operator, you must the elements of your brand that you have secured legal rights to are the same elements that resonate with the market.

Trade-mark Confusion

Confusion Will (1) Prevent Registration of Your Trade-Mark and (2) Expose You to Infringement Claims

Many clients come to me having done some initial research into the availability of their proposed trade-mark.  However, most do not understand the importance of the concept of confusion plays in analyzing availability.

Trade-marks Act

Trade-marks Act

T-13

An Act relating to trade-marks and unfair competition
SHORT TITLE
Short title

1. This Act may be cited as the Trade-marks Act.

R.S., c. T-10, s. 1.
INTERPRETATION
Definitions

2. In this Act,

“certification mark”
«marque de certification »

“certification mark” means a mark that is used for the purpose of distinguishing or so as to distinguish wares or services that are of a defined standard with respect to

(a) the character or quality of the wares or services,

(b) the working conditions under which the wares have been produced or the services performed,

(c) the class of persons by whom the wares have been produced or the services performed, or

(d) the area within which the wares have been produced or the services performed,

from wares or services that are not of that defined standard;

“confusing”
«créant de la confusion »

“confusing” , when applied as an adjective to a trade-mark or trade-name, means a trade-mark or trade-name the use of which would cause confusion in the manner and circumstances described in section 6;

“Convention”
«Convention »

“Convention” means the Convention of the Union of Paris made on March 20, 1883 and any amendments and revisions thereof made before or after July 1, 1954 to which Canada is party;

“country of origin”
«pays d’origine »

“country of origin” means

(a) the country of the Union in which the applicant for registration of a trade-mark had at the date of the application a real and effective industrial or commercial establishment, or

(b) if the applicant for registration of a trade-mark did not at the date of the application have in a country of the Union an establishment as described in paragraph (a), the country of the Union where he on that date had his domicile, or

(c) if the applicant for registration of a trade-mark did not at the date of the application have in a country of the Union an establishment as described in paragraph (a) or a domicile as described in paragraph (b), the country of the Union of which he was on that date a citizen or national;

“country of the Union”
«pays de l’Union »

“country of the Union” means

(a) any country that is a member of the Union for the Protection of Industrial Property constituted under the Convention, or

(b) any WTO Member;

“distinctive”
«distinctive »

“distinctive” , in relation to a trade-mark, means a trade-mark that actually distinguishes the wares or services in association with which it is used by its owner from the wares or services of others or is adapted so to distinguish them;

“distinguishing guise”
«signe distinctif »

“distinguishing guise” means

(a) a shaping of wares or their containers, or

(b) a mode of wrapping or packaging wares

the appearance of which is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others;

“geographical indication”
«indication géographique »

“geographical indication” means, in respect of a wine or spirit, an indication that

(a) identifies the wine or spirit as originating in the territory of a WTO Member, or a region or locality of that territory, where a quality, reputation or other characteristic of the wine or spirit is essentially attributable to its geographical origin, and

(b) except in the case of an indication identifying a wine or spirit originating in Canada, is protected by the laws applicable to that WTO Member;

“owner”
«propriétaire »

“owner” , in relation to a certification mark, means the person by whom the defined standard has been established;

“package”
«paquet » ou
«colis »

“package” includes any container or holder ordinarily associated with wares at the time of the transfer of the property in or possession of the wares in the course of trade;

“person”
«personne »

“person” includes any lawful trade union and any lawful association engaged in trade or business or the promotion thereof, and the administrative authority of any country, state, province, municipality or other organized administrative area;

“person interested”
«personne intéressée »

“person interested” includes any person who is affected or reasonably apprehends that he may be affected by any entry in the register, or by any act or omission or contemplated act or omission under or contrary to this Act, and includes the Attorney General of Canada;

“prescribed”
«prescrit »

“prescribed” means prescribed by or under the regulations;

“proposed trade-mark”
«marque de commerce projetée »

“proposed trade-mark” means a mark that is proposed to be used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others;

“protected geographical indication”
«indication géographique protégée »

“protected geographical indication” means a geographical indication that is on the list kept pursuant to subsection 11.12(1);

“register”
«registre »

“register” means the register kept under section 26;

“registered trade-mark”
«marque de commerce déposée »

“registered trade-mark” means a trade-mark that is on the register;

“registered user” [Repealed, 1993, c. 15, s. 57]

“Registrar”
«registraire »

“Registrar” means the Registrar of Trade-marks appointed under section 63;

“related companies”
«compagnies connexes »

“related companies” means companies that are members of a group of two or more companies one of which, directly or indirectly, owns or controls a majority of the issued voting stock of the others;

“representative for service”
«représentant pour signification »

“representative for service” means the person or firm named under paragraph 30(g), subsection 38(3), paragraph 41(1)(a) or subsection 42(1);

“trade-mark”
«marque de commerce »

“trade-mark” means

(a) a mark that is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others,

(b) a certification mark,

(c) a distinguishing guise, or

(d) a proposed trade-mark;

“trade-name”
«nom commercial »

“trade-name” means the name under which any business is carried on, whether or not it is the name of a corporation, a partnership or an individual;

“use”
«emploi » ou
«usage »

“use” , in relation to a trade-mark, means any use that by section 4 is deemed to be a use in association with wares or services;

“wares”
«marchandises »

“wares” includes printed publications;

“WTO Agreement”
«Accord sur l’OMC »

“WTO Agreement” has the meaning given to the word “Agreement” by subsection 2(1) of the World Trade Organization Agreement Implementation Act;

“WTO Member”
«membre de l’OMC »

“WTO Member” means a Member of the World Trade Organization established by Article I of the WTO Agreement.

Canada Business Corporations Act

Canada Business Corporations Act

C-44

An Act respecting Canadian business corporations

SHORT TITLE

Short title

1. This Act may be cited as the Canada Business Corporations Act.

R.S., 1985, c. C-44, s. 1; 1994, c. 24, s. 1(F).

PART I

INTERPRETATION AND APPLICATION

Interpretation

Definitions

2. (1) In this Act,

“affairs”

« affaires internes »

“affairs” means the relationships among a corporation, its affiliates and the shareholders, directors and officers of such bodies corporate but does not include the business carried on by such bodies corporate;

“affiliate”

« groupe »

“affiliate” means an affiliated body corporate within the meaning of subsection (2);

“articles”

« statuts »

“articles” means the original or restated articles of incorporation, articles of amendment, articles of amalgamation, articles of continuance, articles of reorganization, articles of arrangement, articles of dissolution, articles of revival and includes any amendments thereto;

“associate”

« liens »

“associate”, in respect of a relationship with a person, means

(a) a body corporate of which that person beneficially owns or controls, directly or indirectly, shares or securities currently convertible into shares carrying more than ten per cent of the voting rights under all circumstances or by reason of the occurrence of an event that has occurred and is continuing, or a currently exercisable option or right to purchase such shares or such convertible securities,

(b) a partner of that person acting on behalf of the partnership of which they are partners,

(c) a trust or estate in which that person has a substantial beneficial interest or in respect of which that person serves as a trustee or liquidator of the succession or in a similar capacity,

(d) a spouse of that person or an individual who is cohabiting with that person in a conjugal relationship, having so cohabited for a period of at least one year,

(e) a child of that person or of the spouse or individual referred to in paragraph (d), and

(f) a relative of that person or of the spouse or individual referred to in paragraph (d), if that relative has the same residence as that person;

“auditor”

« vérificateur »

“auditor” includes a partnership of auditors or an auditor that is incorporated;

“beneficial interest”

« véritable propriétaire » et « propriété effective »

“beneficial interest” means an interest arising out of the beneficial ownership of securities;

“beneficial ownership”

« véritable propriétaire » et « propriété effective »

“beneficial ownership” includes ownership through any trustee, legal representative, agent or other intermediary;

“body corporate”

« personne morale »

“body corporate” includes a company or other body corporate wherever or however incorporated;

“call”

« option d’achat »

“call” means an option transferable by delivery to demand delivery of a specified number or amount of securities at a fixed price within a specified time but does not include an option or right to acquire securities of the corporation that granted the option or right to acquire;

“corporation”

« société par actions » ou « société »

“corporation” means a body corporate incorporated or continued under this Act and not discontinued under this Act;

“court”

« tribunal »

“court” means

(a) in the Provinces of Newfoundland and Prince Edward Island, the trial division of the Supreme Court of the Province,

(a.1) in the Province of Ontario, the Superior Court of Justice,

(b) in the Provinces of Nova Scotia and British Columbia, the Supreme Court of the Province,

(c) in the Provinces of Manitoba, Saskatchewan, Alberta and New Brunswick, the Court of Queen’s Bench for the Province,

(d) in the Province of Quebec, the Superior Court of the Province, and

(e) the Supreme Court of Yukon, the Supreme Court of the Northwest Territories and the Nunavut Court of Justice;

“court of appeal”

« Cour d’appel »

“court of appeal” means the court to which an appeal lies from an order of a court;

“debt obligation”

« titre de créance »

“debt obligation” means a bond, debenture, note or other evidence of indebtedness or guarantee of a corporation, whether secured or unsecured;

“Director”

« directeur »

“Director” means the Director appointed under section 260;

“director”, “directors” and “board of directors”

« administrateur » et « conseil d’administration »

“director” means a person occupying the position of director by whatever name called and “directors” and “board of directors” includes a single director;

“distributing corporation”

« société ayant fait appel au public »

“distributing corporation” means, subject to subsections (6) and (7), a distributing corporation as defined in the regulations;

“entity”

« entité »

“entity” means a body corporate, a partnership, a trust, a joint venture or an unincorporated association or organization;

“going-private transaction”

« opération de fermeture »

“going-private transaction” means a going-private transaction as defined in the regulations;

“incorporator”

« fondateur »

“incorporator” means a person who signs articles of incorporation;

“individual”

« particulier »

“individual” means a natural person;

“liability”

« passif »

“liability” includes a debt of a corporation arising under section 40, subsection 190(25) and paragraphs 241(3)(f) and (g);

“Minister”

« ministre »

“Minister” means such member of the Queen’s Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of this Act;

“officer”

« dirigeant »

“officer” means an individual appointed as an officer under section 121, the chairperson of the board of directors, the president, a vice-president, the secretary, the treasurer, the comptroller, the general counsel, the general manager, a managing director, of a corporation, or any other individual who performs functions for a corporation similar to those normally performed by an individual occupying any of those offices;

“ordinary resolution”

« résolution ordinaire »

“ordinary resolution” means a resolution passed by a majority of the votes cast by the shareholders who voted in respect of that resolution;

“person”

« personne »

“person” means an individual, partnership, association, body corporate, or personal representative;

“personal representative”

« représentant personnel »

“personal representative” means a person who stands in place of and represents another person including, but not limited to, a trustee, an executor, an administrator, a receiver, an agent, a liquidator of a succession, a guardian, a tutor, a curator, a mandatary or an attorney;

“prescribed”

« prescrit » ou « réglementaire »

“prescribed” means prescribed by the regulations;

“put”

« option de vente »

“put” means an option transferable by delivery to deliver a specified number or amount of securities at a fixed price within a specified time;

“redeemable share”

« action rachetable »

“redeemable share” means a share issued by a corporation

(a) that the corporation may purchase or redeem on the demand of the corporation, or

(b) that the corporation is required by its articles to purchase or redeem at a specified time or on the demand of a shareholder;

“resident Canadian”

« résident canadien »

“resident Canadian” means an individual who is

(a) a Canadian citizen ordinarily resident in Canada,

(b) a Canadian citizen not ordinarily resident in Canada who is a member of a prescribed class of persons, or

(c) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and ordinarily resident in Canada, except a permanent resident who has been ordinarily resident in Canada for more than one year after the time at which he or she first became eligible to apply for Canadian citizenship;

“security”

« valeur mobilière »

“security” means a share of any class or series of shares or a debt obligation of a corporation and includes a certificate evidencing such a share or debt obligation;

“security interest”

« sûreté »

“security interest” means an interest in or charge on property of a corporation to secure payment of a debt or performance of any other obligation of the corporation;

“send”

« envoyer »

“send” includes deliver;

“series”

« série »

“series”, in relation to shares, means a division of a class of shares;

“special resolution”

« résolution spéciale »

“special resolution” means a resolution passed by a majority of not less than two-thirds of the votes cast by the shareholders who voted in respect of that resolution or signed by all the shareholders entitled to vote on that resolution;

“squeeze-out transaction”

« opération d’éviction »

“squeeze-out transaction” means a transaction by a corporation that is not a distributing corporation that would require an amendment to its articles and would, directly or indirectly, result in the interest of a holder of shares of a class of the corporation being terminated without the consent of the holder, and without substituting an interest of equivalent value in shares issued by the corporation, which shares have equal or greater rights and privileges than the shares of the affected class;

“unanimous shareholder agreement”

« convention unanime des actionnaires »

“unanimous shareholder agreement” means an agreement described in subsection 146(1) or a declaration of a shareholder described in subsection 146(2).

Affiliated bodies corporate

(2) For the purposes of this Act,

(a) one body corporate is affiliated with another body corporate if one of them is the subsidiary of the other or both are subsidiaries of the same body corporate or each of them is controlled by the same person; and

(b) if two bodies corporate are affiliated with the same body corporate at the same time, they are deemed to be affiliated with each other.

Ontario Business Corporations Act

PART I
DEFINITIONS, INTERPRETATION AND APPLICATION

Definitions and interpretation

1. (1) In this Act,

“affairs” means the relationships among a corporation, its affiliates and the shareholders, directors and officers of such bodies corporate but does not include the business carried on by such bodies corporate; (“affaires internes”)

“affiliate” means an affiliated body corporate within the meaning of subsection (4); (“membre du même groupe”)

“articles” means the original or restated articles of incorporation, articles of amendment, articles of amalgamation, articles of arrangement, articles of continuance, articles of dissolution, articles of reorganization, articles of revival, letters patent, supplementary letters patent, a special Act and any other instrument by which a corporation is incorporated; (“statuts”)

“associate”, where used to indicate a relationship with any person, means,

(a) any body corporate of which the person beneficially owns, directly or indirectly, voting securities carrying more than 10 per cent of the voting rights attached to all voting securities of the body corporate for the time being outstanding,

(b) any partner of that person,

(c) any trust or estate in which the person has a substantial beneficial interest or as to which the person serves as trustee or in a similar capacity,

(d) any relative of the person, including the person’s spouse, where the relative has the same home as the person, or

(e) any relative of the spouse of the person where the relative has the same home as the person; (“personne qui a un lien”)

“auditor” includes a partnership of auditors; (“vérificateur”)

“beneficial interest” or “beneficial ownership” includes ownership through a trustee, legal representative, agent or other intermediary and, in the case of a security, includes the interest of an entitlement holder, as defined in the Securities Transfer Act, 2006, with respect to that security, but does not include the interest of an entitlement holder that is a securities intermediary, as defined in the Securities Transfer Act, 2006, that has established a security entitlement, as defined in the Securities Transfer Act, 2006, in favour of its entitlement holder with respect to that security; (“intérêt bénéficiaire”, “propriété bénéficiaire”)

“body corporate” means any body corporate with or without share capital and whether or not it is a corporation to which this Act applies; (“personne morale”)

“certified copy” means,

(a) in relation to a document of a corporation, a copy of the document certified to be a true copy by an officer thereof,

(b) in relation to a document issued by a court, a copy of the document certified to be a true copy under the seal of the court and signed by the registrar thereof,

(c) in relation to a document in the custody of the Director, a copy of the document certified to be a true copy by the Director and signed by the Director or by such officer of the Ministry as is designated by the regulations; (“copie certifiée conforme”)

“Commission” means the Ontario Securities Commission; (“Commission”)

“corporation” means a body corporate with share capital to which this Act applies; (“société”, “société par actions”)

“corporation number” means the number assigned by the Director to a corporation in accordance with subsection 8(1) and “number” in relation to a corporation means the corporation number of that corporation; (“numéro de la société”, “numéro”)

“court” means the Superior Court of Justice; (“tribunal”)

“day” means a clear day and a period of days shall be deemed to commence the day following the event that began the period and shall be deemed to terminate at midnight of the last day of the period except that if the last day of the period falls on a Sunday or holiday the period shall terminate at midnight of the day next following that is not a Sunday or holiday; (“jour”)

“debt obligation” means a bond, debenture, note or other similar obligation or guarantee of such an obligation of a body corporate, whether secured or unsecured; (“titre de créance”)

“Director” means the Director appointed under section 278; (“directeur”)

“director” means a person occupying the position of director of a corporation by whatever name called, and “directors” and “board of directors” include a single director; (“administrateur”)

“electronic signature” means an identifying mark or process that is,

(a) created or communicated using telephonic or electronic means,

(b) attached to or associated with a document or other information, and

(c) made or adopted by a person to associate the person with the document or other information, as the case may be; (“signature électronique”)

“endorse” includes imprinting a stamp on the face of articles or other document sent to the Director; (“apposer”)

“financial statement” means a financial statement referred to in section 154; (“état financier”)

“incorporator” means a person who signs articles of incorporation; (“fondateur”)

“individual” means a natural person, but does not include a partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, or a natural person in his or her capacity as trustee, executor, administrator or other legal representative; (“particulier”)

“interim financial statement” means a financial statement referred to in section 160; (“état financier périodique”)

“liability” includes a debt of a corporation arising under section 36, subsection 185(29) or clause 248(3)(f) or (g); (“passif”)

“Minister” means the Minister of Consumer and Business Services or such other member of the Executive Council to whom the administration of this Act may be assigned; (“ministre”)

“Ministry” means the Ministry of the Minister; (“ministère”)

“non-resident corporation” means a corporation incorporated in Canada before the 27th day of April, 1965, and that is not deemed to be resident in Canada for the purposes of the Income Tax Act (Canada) by subsection 250(4) of that Act; (“société non résidente”)

“number name” means the name of a corporation that consists only of its corporation number followed by the word “Ontario” and one of the words or abbreviations provided for in subsection 10(1); (“dénomination sociale numérique”)

“offering corporation” means a corporation that is offering its securities to the public within the meaning of subsection (6) and that is not the subject of an order of the Commission deeming it to have ceased to be offering its securities to the public; (“société faisant appel au public”)

“officer” means an officer designated under section 133 and includes the chair of the board of directors, a vice-chair of the board of directors, the president, a vice-president, the secretary, an assistant secretary, the treasurer, an assistant treasurer and the general manager of a corporation, and any other individual designated an officer of a corporation by by-law or by resolution of the directors or any other individual who performs functions for a corporation similar to those normally performed by an individual occupying any such office; (“dirigeant”)

“ordinary resolution” means a resolution that is submitted to a meeting of the shareholders of a corporation and passed, with or without amendment, at the meeting by at least a majority of the votes cast; (“résolution ordinaire”)

“person” includes an individual, sole proprietorship, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate, and a natural person in his or her capacity as trustee, executor, administrator, or other legal representative; (“personne”)

“personal representative”, where used with reference to holding shares in that capacity, means an executor, administrator, estate trustee, guardian, tutor, trustee, receiver or liquidator or the curator, guardian for property or attorney under a continuing power of attorney with authority for a person who is mentally incapable of managing his or her property; (“ayant droit”)

“prescribed” means prescribed by the regulations; (“prescrit”)

“redeemable share” means a share issued by a corporation,

(a) that the corporation may purchase or redeem upon the demand of the corporation, or

(b) that the corporation is required by its articles to purchase or redeem at a specified time or otherwise upon the demand of a shareholder; (“action rachetable”)

“registered form” means registered form as defined in the Securities Transfer Act, 2006; (“nominatif”)

“registered office” means the office of a corporation located at the address specified in its articles or in the notice most recently filed by the corporation under subsection 14(3); (“siège social”)

“regulations” means the regulations made under this Act; (“règlements”)

“related person”, where used to indicate a relationship with any person, means,

(a) any spouse, son or daughter of that person,

(b) any relative of the person or of the person’s spouse, other than an individual referred to in clause (a), who has the same home as the person, or

(c) any body corporate of which the person and any of the persons referred to in clause (a) or (b) or the partner or employer of the person, or any combination, beneficially own, directly or indirectly, voting securities carrying more than 50 per cent of the voting rights attached to all voting securities of the body corporate for the time being outstanding; (“personne liée”)

“resident Canadian” means an individual who is,

(a) a Canadian citizen ordinarily resident in Canada,

(b) a Canadian citizen not ordinarily resident in Canada who is a member of a prescribed class of persons, or

(c) a permanent resident within the meaning of the Immigration Act (Canada) and ordinarily resident in Canada; (“résident canadien”)

“security” means a share of any class or series of shares or a debt obligation of a body corporate; (“valeur mobilière”)

“security certificate” means a certificate evidencing a security; (“certificat de valeur mobilière”)

“security interest” means an interest in or charge upon the property of a body corporate by way of mortgage, hypothec, pledge or otherwise, to secure payment of a debt or performance of any other obligation of the body corporate; (“sûreté”)

“send” includes deliver or mail; (“envoyer”)

“senior officer” means,

(a) the chair of the board of directors, a vice-chair of the board of directors, the president, a vice-president, the secretary, the treasurer or the general manager of a corporation or any other individual who performs functions for a corporation similar to those normally performed by an individual occupying any such office, and

(b) each of the five highest paid employees of a corporation, including any individual referred to in clause (a); (“cadre dirigeant”)

“series”, in relation to shares, means a division of a class of shares; (“série”)

“special resolution” means a resolution that is,

(a) submitted to a special meeting of the shareholders of a corporation duly called for the purpose of considering the resolution and passed, with or without amendment, at the meeting by at least two-thirds of the votes cast, or

(b) consented to in writing by each shareholder of the corporation entitled to vote at such a meeting or the shareholder’s attorney authorized in writing; (“résolution spéciale”)

“spouse” means a person to whom the person is married or with whom the person is living in a conjugal relationship outside marriage; (“conjoint”)

“telephonic or electronic means” means telephone calls or messages, facsimile messages, electronic mail, transmission of data or information through automated touch-tone telephone systems, transmission of data or information through computer networks, any other similar means or any other prescribed means; (“voie téléphonique ou électronique”)

“unanimous shareholder agreement” means an agreement described in subsection 108(2) or a declaration of a shareholder described in subsection 108 (3); (“convention unanime des actionnaires”)

“uncertificated security” means an uncertificated security as defined in the Securities Transfer Act, 2006; (“valeur mobilière sans certificat”)

“voting security” means any security other than a debt obligation of a body corporate carrying a voting right either under all circumstances or under some circumstances that have occurred and are continuing; (“valeur mobilière avec droit de vote”)

“warrant” means any certificate or other document issued by a corporation as evidence of conversion privileges or options or rights to acquire securities of the corporation.