IP terminology primer
The field of intellectual property can be tricky to navigate. There are various types of intellectual property including patents, trade-marks and copyright, among others. Several major pieces of IP legislation and governmental bodies exist in Canada. Since various policies can impact one’s ability to file and protect their IP in Canada, we believe that it is important our clients know about them. Hence, we will relay them in a user-friendly guide below.
General Bodies
Innovation, Science, and Economic Development Canada is committed to making our country an innovative hub that is attractive to foreign investment.[1]
The Canadian Intellectual Property Office (CIPO) files and administers patents, copyrights and trade-marks nationwide.[2] It is a segment of Innovation, Science and Economic Development Canada.
Prior to filing intellectual property, an entrepreneur can do a preliminary search on an online database. One can see if similar patents, copyrights and trade-marks already exist.
The Federal Court has “original exclusive jurisdiction” for intellectual property.[3]
Copyright
The Copyright Act governs copyright in Canada. It defines protected works and copyright infringement.[4]
Bill C-11 was a relatively recent bill that modernized Canada’s Copyright Act. In some ways, it strengthened Canada’s copyright policies and in other ways, it liberalized them. It barred breaking access control locks but also created a copyright exception for user-generated content.[5]
The Copyright Office allows one to search copyrights registered prior to 1991.[6] It is located in Gatineau, Quebec.
The Copyright Board of Canada administers copyright in Canada.[7]
Certificates of copyright are available for registered copyrights.[8]
Patents
The Patent Act is the authority for Canadian patent law. It states what is patentable and what constitutes patent infringement[9].
Registered patent agents can file and draft patent claims.[10] They must pass an examination and the Patent Rules govern this profession.[11]
A small entity is an entity that is composed of 50 or fewer employees or is a university.[12] A small entity’s fees are generally less expensive.[13]
If a patent is rejected, one can appeal to the Patent Appeal Board.[14]
Trade-marks
The Trade-marks Act regulates Canadian trade-mark policies.[15]
A certification mark distinguishes goods or services. These marks often denote the “class of people” who created them, the goods’ quality, the “working conditions” in which they were created and the “area” where the goods or services were produced or performed.[16]
Distinguishing guises are “modes of wrapping” or “shaping of goods or their containers”.[17] An example would be a palm-tree shaped glass.
Passing-off is a tort available to unregistered trade-marks. For passing-off to exist, one must prove “the existence of goodwill”, “deception” and “actual or potential damage to the plaintiff”.[18]
Registered trade-mark agents can help prepare a trade-mark application and check up with CIPO regarding the status of the trade-mark. Registered trade-mark agents must pass an exam.[19]
In conclusion, there are many IP bodies or pieces of legislation governing intellectual property in Canada. With this vast collection of IP-related entities, it’s helpful to have a guide by your side. With our emphasis on intellectual property, Innovate LLP can be the guide you need.
[1] Government of Canada, “Innovation, Science and Economic Development Canada” (17 August 2017), Government of Canada (website), online:< https://www.canada.ca/en/innovation-science-economic-development.html>.
[2] Government of Canada, “Canadian Intellectual Property Office” (21 August 2017), Government of Canada (website), online:< http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/Home>.
[3] Federal Courts Act, RSC 1985, c F-7, s20(1)(a).
[4] Copyright Act, RSC 1985, c C- 42.
[5] Bill C-11, An Act to Amend the Copyright Act, 1st Sess, 41st Parl, 2012, cls 2.3 & 29.21(1).
[6] Canadian Intellectual Property Office, “A guide to copyright” (15 November 2016), Government of Canada (website), online:< https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02281.html> [A guide to copyright].
[7] Ibid.
[8] A guide to copyright, supra note 6.
[9] Patent Act, RSC 1985, c P-4.
[10] Canadian Intellectual Property Office, “ A guide to patents” (30 June 2017), Government of Canada (website), online:< https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr03652.html> [A guide to patents].
[11] Ibid.
[12] A guide to patents, supra note 13.
[13] Ibid.
[14] A guide to patents, supra note 13.
[15] Trade-marks Act, RSC 1985, c T-13 [Trade-marks Act]
[16] Ibid at s 2.
[17] Ibid.
[18] Ciba-Geigy Canada Ltd v Apotex Inc, 1992 SCC 33, 3 SCR 120.
[19] Canadian Intellectual Property Office, “ A guide to trademarks” (5 February 2016), Government of Canada (website), online:< http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02360.html>
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