Creativity Life Cycles : Canadian Trademark Agent and Lawyer : Joshua MacFadden : MacPherson Leslie & Tyerman Law Firm : Patents, Intellectual Property

On April 29, 2010, the Trademarks Branch and Trademarks Opposition Board introduced a new online feature called "Work in Progress" which provide notice of various office initiatives to allow for public input in the policy development process.

Currently, these policy review initiatives include potential changes to the Examination Manual, updates to the Trade-marks Regulations to allow changes to trademark opposition practice (including the electronic filing of evidence!), and to clarify the current Practice Notice  on Opposition Proceedings as it relates to cross-examination.  Readers are encouraged to monitor the "Work in Progress" since each review process involves restricted time periods for input.

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The Canadian Intellectual Property Office  (the "CIPO") has published a Practice Notice effective March 11, 2010 which outlines new policies and practices concerning extensions of time during the examination of trademark and industrial design applications.

Specifically, the Trademarks Office and Industrial Design Office will provide Applicants with one (1) extension of time up to a maximum of six (6) months to file a complete response to an Examiner's Report.  If a proper response is not filed by the extended deadline the application will go into default (thereby imposing a final, non-extendable deadline). 

If, however, an Applicant requires additional time to prepare and file a response, an additional extension will be granted if "exceptional circumstances" are provided to the Examiner which justifies the need for further time.  The CIPO has provided the following examples of "exceptional circumstances" which may justify a further extension of time:

1. a recent change in Trade-mark Agent;
2. circumstances beyond the control of the person concerned (i.e. illness, accident, death, bankruptcy or other unforeseen or serious circumstances);
3. a  very recent assignment of the trade-mark;
4. where a certified copy of a foreign registration certificate has been requested by the Examiner but not yet filed because the foreign application has not registered;
5. where the applicant is negotiating for a consent from the holder of an official mark; or
6. if the cited co-pending and confusing mark may be going abandoned; is subject of opposition proceedings initiated by the Applicant; or where a cited registration is the subject of a section 45 proceeding initiated by the Applicant. 

Notably, the above-mentioned list is not exhaustive and does provide a measure of flexibility for examiners to exercise some discretion in granting additional time.  Nevertheless, the Practice Notice vaguely references a "recent" change or assignment of the mark (1 and 2 above) while seeming to suggest that the Applicant must also be the party that initiates opposition or a section 45 proceeding against a cited mark (this latter requirement is perplexing since it is the outcome of that proceeding which is relevant to the prosecution rather than the parties to the opposition/section 45 proceeding).

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Today the Trademarks Office announced the release of a newly revised and updated Wares and Services Manual to clarify requirements and policies for the description of the products and services in Canadian trademark applications.  The Trademarks Office has additionally provided a three-part test for assessing the sufficiency of a wares and services description for the purpose of satisfying section 30(a) of the Trade-marks Act (i.e. the wares and services must be described in ordinary commercial terms).

The revisions also clarify office policies regarding terminology which generally necessitates that an Applicant provide greater specificity prior to Approval (i.e. will prompt a request for further clarification):  "parts and fittings", accessories, equipment, apparatus, computer software, systems, products, discs and pre-recorded media, nutritional supplements, etc.

Lastly, whereas the current manual is in pdf form, the new manual has been introduced in electronic form only thereby enabling faster revision and policy releases following changes in policy, interpretation, new Practice Notices, etc.

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The Canadian Trademarks Office has announced a Consultation and Discussion Period expiring November 15, 2009 to review a Proposed Practice Notice intended to clarify the requirements for a complete section 16(2) (i.e. "Registration and Use Abroad") claim.

The proposal requires that a complete a section 16(2) claim by include:

• the particulars of the foreign application or registration of the trademark in or for the country of origin of the Applicant; and
• the name of a country in which the trademark has been used as of the date of filing in Canada

If an incomplete section 16(2) claim is included in an application but the case is otherwise in a position for advertisement, the application will proceed to advertisement in the Trade-marks Journal without the section 16(2) claim and without providing formal notice to the Applicant, save for the Approval Notice.  As readers know, a section 16(2) claim may not be added to the application subsequent to advertisement.

The Trademarks Office has indicated that an Applicant may add or complete a section 16(2) claim "prior to the decision of the Registrar to advertise the trademark".  (It is unclear, however, whether the "decision of the Registrar to advertise" in fact, refers to the actual advertisement of the mark or an arbitrary date prior to publication.)

The result of this proposal and particularly the immediate advertisement of the mark without completing the section 16(2) claim effectively denies the Applicant the present ability to complete the claim and to subsequently finalize the registration process based solely upon the section 16(2) claim(s) and thus such Applicants will be required to submit a Declaration of Use in circumstances where the Applicant has provided "proposed use" claims.

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The Canadian Trademarks Office has today announced the commencement of a consultation period to review proposed changes to the practice of granting extensions of time during the examination of trademark applications.

The Proposed Practice Notice outlines that Applicants will be generally be granted one (1) extension of time to a maximum of six (6) months to file a response to an Examiner's Report, if the request is justified.  And further, if the Applicant fails to provide a response or the if the reasons for requesting a further extension of time are not considered sufficient, the application will be subject to a default notice.

The Trademarks Office has offered no guidance as to what might be deemed a "justified" reason for requesting a further extension of time and thus it is unclear whether such issues as (a) the assignment of the trademark; (b) circumstances beyond the control of the Applicant (i.e. bankruptcy) or where an Applicant is: (c) seeking to investigate, cancel or acquire the rights of a cited applicant or registrant (which may take months or years); (d) awaiting the consent of a public authority (which may also take months or years); or (e) awaiting a certified copy of a foreign registration (i.e. where an application is based upon Application and Use Abroad) and/or such foreign application is in the midst of opposition. 

Since the consultation period expires on October 30, 2009 it is hoped that submissions to the Trademarks Office include requests for additional guidance or benchmarks as to the standards necessary to satisfy the requirement for a "justified" reason for a further extension of time such as those outlined above.

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The Canadian Trade-marks Opposition Board ("TMOB") has issued a Practice Notice announcing changes to Section 45 Proceedings which will be made effective September 14, 2009. 

The Section 45 process is initiated at the request of any person seeking evidence that a mark which has been registered for at least three years, has indeed been used by or on behalf of the Registrant.  The process is intended to be a simple and expeditious process requiring that a Registrant submit, within three months of receipt of the Section 45 Notice, evidence of use of the trademark (or special circumstances excusing non-use) within the three (3) year period preceding the notice.  Underlying this process is a motivation to clear "dead wood" from the Register to remove those marks which are not "in use" by Registrants.  Nevertheless, over time the section 45 process has been less efficient for a variety of reasons including, for example, the unwillingness of unhurried non-using Registrant's to acknowledge a lack of evidence, successive requests for extensions of time to submit evidence, written arguments, etc.  Accordingly, the TMOB has sought to increase the efficiency of the process with the current announcement, which includes:

• limiting the number of extensions of time available to Registrants to one extension of up to four months;
• disallowing retroactive extensions of time to submit additional evidence after the Requesting Party has filed written submissions;
• increasing the time line for submitting written argument to four months from the current two, with no extensions of time available; and
• providing additional certainty for the scheduling and re-scheduling of oral hearings

Additionally, the TMOB has clarified policies concerning both the Registrar's discretion to issue a Section 45 Notice and guidance with respect to those exceptional circumstances which may excuse a Registrant's non-use of the trademark.

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Following up on an earlier post, the Canadian Trade-marks Office has announced changes to the examination of trademark applications. 

Effective June 17, 2009 the time allowed to respond to Examiner's Report is now six (6) months (from the previous four months).  Notably, however, this change will not impact deadlines imposed prior to June 17, 2009 (i.e. for Examiner's Reports issued prior to that date) and thus it will be important to carefully diarize any outstanding deadlines to reflect this change.

Additionally, the Trade-marks Office has announced that it will no longer issue "courtesy letters" to applicants to advise regarding co-pending and potentially confusing applications with a later filing date.

You may also recall that the Trade-marks Office was soliciting input regarding a third policy, namely a proposal to no longer impose a deadline for a Requesting Party to respond to correspondence relating to Changes in Title.  At this time there has been no formal announcement concerning the introduction of this policy.

In addition to changes noted above, the Canadian Intellectual Property Office has commenced a consultation period expiring September 14, 2009 to consider enabling clients (for patents, trademarks, industrial design, copyright and integrated circuit topography applications) to file correspondence and obtain filing dates on Saturdays, Sunday and holidays - while still maintaining the current time extensions for deadlines.  To applicants filing submissions or applications on those days formerly known as a day off this may represent a positive development to provide an earlier filing date than that which is currently available.  Nevertheless, to others this may simply represent a further worrisome encroachment on an employee's family or free time in a manner continuing along the trend of 24/7 accessibility in the age of handheld email devices.

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Following up on an earlier post, the Canadian Trade-marks Office has announced changes to the examination of trademark applications. 

Effective June 17, 2009 the time allowed to respond to Examiner's Report is now six (6) months (from the previous four months).  Notably, however, this change will not impact deadlines imposed prior to June 17, 2009 (i.e. for Examiner's Reports issued prior to that date) and thus it will be important to carefully diarize any outstanding deadlines to reflect this change.

Additionally, the Trade-marks Office has announced that it will no longer issue "courtesy letters" to applicants to advise regarding co-pending and potentially confusing applications with a later filing date.

You may also recall that the Trade-marks Office was soliciting input regarding a third policy, namely a proposal to no longer impose a deadline for a Requesting Party to respond to correspondence relating to Changes in Title.  At this time there has been no formal announcement concerning the introduction of this policy.

In addition to changes noted above, the Canadian Intellectual Property Office has commenced a consultation period expiring September 14, 2009 to consider enabling clients (for patents, trademarks, industrial design, copyright and integrated circuit topography applications) to file correspondence and obtain filing dates on Saturdays, Sunday and holidays - while still maintaining the current time extensions for deadlines.  To applicants filing submissions or applications on those days formerly known as a day off this may represent a positive development to provide an earlier filing date than that which is currently available.  Nevertheless, to others this may simply represent a further worrisome encroachment on an employee's family or free time in a manner continuing along the trend of 24/7 accessibility in the age of handheld email devices.

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On June 9, 2009 the well-known social networking site Facebook announced the introduction of a new policy to enable users to register personalized usernames as personal URLS in the form:  www.facebook.com/yourname, which will then link to the user's Facebook profile.  Additionally, those administering groups or other Facebook pages may similarly select their own URL for that page.  The initiative starts at 12:01 EDT on Saturday, June 13, 2009 for those whom have signed up with Facebook prior to May 31, 2009 or which have used a particular user profile prior to June 9, 2009.

Additionally, however, the introduction of this policy raises the potential for the adoption of personal URLs which may be confusingly similar or identical to trademarks and brand names thereby resulting in "Facebook squatting".  Anticipating this possibility and, in advance of the Saturday launch, Facebook Inc. has enabled trademark owners to use an on line form to register their trademarks with Facebook in order to prevent third parties from utilize a trademark as part of a URL. 

In order to mitigate against negative repercussions it is advisable that trademark owners register their marks with Facebook in order to avoid potential confusion or negative consequences such as diminished goodwill, it is recommended that you contact Facebook Inc. using the online form or contact our office to arrange for a recordal of your rights.

Should you wish to discuss the implications of this policy on your trademarks please contact us.

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The Canadian Intellectual Property Office has opened up consultation to proposed changes to the trademark application process including:

1. providing Applicants with six (6) months to respond to Examiner's Reports rather than the current four (4) months;
2. no longer imposing a deadline for a Requesting Party to respond to correspondence relating to Changes in Title; and
3. No longer issuing courtesy letters to Applicants to inform about co-pending and confusing applications that have a later entitlement date.

While the first two proposals will likely result in fewer requests for extensions of time and a more realistic time line for Applicants and their representatives, an open-ended Change in Title request may result in some uncertainty with respect to the ownership of trademark applications and registrations.  Nevertheless, trademark owners would be well advised to expedite title transfers in order to perfect their ownership for the purpose of notifying the public, competitors and consumers regarding the source of products and services.  In terms of the third proposal, it is unlikely that many trademark agents and lawyers would rely upon such courtesy letters to monitor the Trade-marks Register since they have been discretionary and somewhat inconsistently disseminated.  Nevertheless, improving upon the delivery of such letters is likely resource prohibitive for the Trademarks Office and with the multiple automated trademark search and watch services available the continued delivery of such courtesy letters unnecessarily exposes the Trademarks Office to liability for failure to provide notice in some instances.  Overall, the proposed changes are likely to enhance service by reducing requests for extension of time and the inconsistent provision of courtesy letters thereby potentially improving the administration of trademark applications, registrations and title transfers.

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In a further development of an earlier story relating to the Canadian Intellectual Property Office ("CIPO"), the United States Patent and Trademark Office ("USPTO") has now issued a warning to customers regarding unsolicited communication from third parties requesting fees for certain services.The USPTO invites recipients of unsolicited correspondence concerning your trademarks to contact the Federal Trade Commission ("FTC") where you receive correspondence from a party other than the USPTO or your agent requesting fees relating to your trademark applications and registrations.The USPTO warning is similar to the warning recently issued by the Canadian Intellectual Property Office ("CIPO") concerning such unsolicited correspondence.  If you receive such materials it is advisable to contact your agent and/or the Client Service Centre at 1-866-997-1936 (or at 819-934-0554 for international calls).

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A Practice Notice , entitled, "Practice in Trade-mark Opposition Proceedings" has recently been issued by the Canadian Trade-marks Opposition Board to introduce procedural changes and guidance concerning the granting of extensions of time.

Effective March 31, 2009, the Practice Notice* will replace the October 1, 2007 Practice Notice entitled "Procedure before the Trade-marks Opposition board as of October 1, 2007" and is intended to:

• Simplify and clarify the Registrar's benchmarks for granting extensions of time including guidance with respect to qualifying "exceptional circumstances" for the purposes of obtaining an extension of time;
• Encourage the parties to pursue settlement and mediation early in the opposition proceeding including the introduction of "Cooling Off Periods" whereby either party may request an extension of time of no more than nine (9) months on consent for the purpose(s) of negotiating settlement , mediation, and/or co-existence between the parties; and
• Introduce a new practice with respect to the scheduling of hearings.

The introduction of these changes has resulted from consultation among the Trademarks Office, applicants and practitioners and, as a result, is expected to  better accommodate time line and other requirements for the parties involved in opposition while providing greater certainty for those seeking to extend opposition deadlines.

*Notably, trademark applications advertised prior to October 1, 2007 will remain subject to the Trade-marks Regulations as they read as of September 30, 2007.

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Recently, the UK Intellectual Property Office issued a Press Release announcing Intellectual Property Agreements between the UK and China concerning trademarks and patents with the objective of encouraging applicants and/or businesses in each country to develop products and services from new innovations and ideas.

The Press Release indicates that Chinese companies currently file four times more patents than in 2004 and project such numbers to increase well into the future, including a forecast that, by 2012, China will generate the largest number of patent applications of any nation in the world.  

In view of current backlogs and delays in patent prosecutions, the patent agreements between the two nations are intended to:

• address backlogs by reducing duplication and delays in the processing of applications and enabling UK and Chinese patent examiners to "make better use of each others' work"; and
• promote the use and understanding of the respective Intellectual Property systems by Chinese and UK businesses.

The trademarks agreement is intended to enable cooperation between the UK Intellectual Property Office and the China Trade Mark Office, including facilitating exchanges of best practices and training.

To date, there have been no simlar announcements from Industry Canada or the Canadian Intellectual Property Office regarding efforts to better facilitate coordination, collaboration and/or increased efficiencies between CIPO and the China Patent & Trademark Office for the protection and exploitation of intellectual property within the two countries although this announcement certainly suggests such agreement could certainly be considered in order to advance the IP interests of businesses operating in both countries.

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The Canadian Intellectual Property Office ("CIPO") is presently seeking input regarding proposed changes to Section 45 Proceedings (i.e. Canada's "use it or lose it" provision of the Trade-marks Act (the "Act")). 

Currently, Section 45 of the Act provides a summary procedure whereby a party may request that the Registrar of Trademarks issue a Section 45 Notice requiring that the registered owner of a trademark submit, within three months, evidence of use of the mark for the three year period preceding the notice or evidence of special circumstances to excuse non-use.  If no special circumstances or evidence are filed or where such evidence is deficient, the registration may be amended or cancelled in its entirety.

Included within the suggested changes are:

1. proposals to permit the requesting party to seek a Section 45 Notice in respect of specific products and/or services rather than the entirety of those products and services listed in the registration;
2. proposed circumstances whereby the Registrar may elect not issue a Section 45 Notice which include:  (a) where the registration is currently the subject of a pending Section 45 proceeding; (b) where the Registrar determines that the request is merely frivolous or vexatious; and (c) where the request is made within three years from the date of a previous Section 45 decision;
3. restrictions to the number of extensions of time available to a registrant for the submission of evidence (i.e. limited to one extension of four months) while clarifying the circumstances which may justify an extension of time;
4. a proposal whereby the Registrar could simply elect to render a decision to cancel, amend or maintain a registration where the evidence "clearly" establishes or fails to establish use of the mark; and lastly,
5. it appears that requesting parties will no longer have the ability to withdraw the Section 45 request and thereby terminate the proceedings in circumstances where the parties are in negotiation.

The consultation period regarding the proposals ends on March 13, 2009 and thus any interested parties are encouraged to submit comment.  We will provide a subsequent post once feedback is published by the Trademarks Office.

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In Canada there are two streams of trademark protection: the registration system and the unregistered or common law approach. Accordingly, any introduction to trademark law in Canada necessitates a discussion on the advantages and disadvantages of pursuing and enforcing trademark rights utilizing either approach. In this post I will review some of the advantages and disadvantages of unregistered trademarks.

For individuals, businesses and other organizations utilizing unregistered trademarks in conducting business, they have placed reliance upon common law trademark protections. Generally speaking, a company satisfying the basic requirements for establishing common law trademark rights can utilize such rights to enforce or restrain a competitor from “passing off” its goods and/or services as those of the rights owner. For some individuals and entities, particularly entrepreneurs and start-ups, this approach to trademark protection is cost effective for the purpose of immediate adoption of a trademark while providing some avenues of rights enforcement since you avoid the costs associated with obtaining legal advice, running trademark searches and filing a trademark application.

Reliance upon common law trademark rights does, however, have several disadvantages. In particular, such rights are limited to the geographic area in which the particular unregistered trademark is known. For example, a company operating in the Maritime region of Canada would be in a position to defend and enforce its common law trademark rights against others operating within (a) the Maritime region and (b) within the same (and/or potentially, an overlapping) channel of trade. Accordingly, that same company would have no ability to restrain or otherwise prevent the use of the same mark within the same channel of trade throughout Western Canada.
Perhaps the clearest disadvantage of reliance upon common law rights involves the costs associated with enforcement. Indeed, over the longer term, such costs can exceed those associated with seeking trademark registration due to the time and financial expense associated with assembling the evidentiary records necessary to defend and/or enforce common law trademark rights. Since the onus is on the party asserting common law rights to substantiate such claims, it will be necessary to maintain and produce records evidencing use of the mark – and such a process has the potential of greatly exceeding the costs associated with running a comprehensive trademark search and seeking trademark registration.

As a final note, reliance upon common law trademark rights is increasingly risky as commercial use of the internet expands to most, if not all, trade channels. A reluctance to obtain a trademark registration due to the initial costs associated with such a pursuit may result in costs exponentially greater if it becomes necessary to defend or enforce common law rights against a competitor with a large and/or growing internet presence.
 

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“Due diligence” in corporate transactions simply means the careful attention and analysis necessary to accurately investigate and determine the value of intellectual property assets, liabilities, the integrity and vulnerability of those assets, and potential exposure to risks of infringing third party rights and/or the erosion of a company’s trade secrets. 

For any company whose success and competitive advantage relies upon intellectual property rights or when considering a transaction touching upon intellectual property rights (whether they are owned or licensed) due diligence should always be conducted. While the dollar amount involved in the transaction may dictate the depth or level of review conducted, due diligence may result in an adjustment of the value of a transaction and thus appropriate investigations should be conducted as early as possible in order to allow for follow up investigations and adjustments to the agreement.

When reviewing intellectual property rights it will be necessary to review, at a minimum, the subject company’s records and publicly available records to assess the following:

1. The subject company’s systems for protecting intellectual property generally including patents, trademarks, copyright, designs, trade secrets, etc. including contracts with third parties (i.e. license agreements), independent contractors and employees to review the sufficiency and enforceability of confidentiality and non-compete commitments;
2. The intellectual property owned, used, licensed and/or being developed by the subject company to determine validity, exposure to infringement and other potential problems, potential liability for infringing a third party’s rights, accuracy of chains of title, pending and/or existing litigation, etc.; and
3. Contractual arrangements to utilize the intellectual property rights of third parties to assess the grant of rights, limitations on use, the exclusivity of such rights, and most importantly in this context, the transferability of such rights

While conducting such strategic reviews may appear intimidating, the results of due diligence have the potential of providing valuable insight into the scope of rights, limitations on those rights, gaps in protection, the enforceability of such rights and, ultimately, the value of the intellectual property assets to be acquired. Indeed, without appropriate investigation a target for acquisition may be greatly overvalued by the vending party so it is essential to receive the vendor’s claims with scepticism and proceed with your own independent due diligence investigations prior to finalizing the financial terms of a transaction.

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Prior to adoption of a trademark and filing a trademark application it is often advisable to conduct a trademark search to help avoid, or mitigate against, the greater costs associated with allegations of trademark infringement, passing off and/or the costs associated with re-branding.

Trademark searches can provide a potential applicant with valuable business and market intelligence concerning the availability of a trademark (registrability), the likelihood of encountering potential objections and/or oppositions in the course of prosecution of an application and, depending on the nature of the search conducted, allow the potential applicant to better anticipate any risks of adopting the mark through a comprehensive search of particular common law sources.

Depending upon a trademark’s particular characteristics and the intended channel of trade, consulting an experienced trademark agent prior to adopting a trademark is advisable in order to review both the registrability of a trademark and any potential risks of adoption. The costs of such searches are normally over and above those associated with filing an application, however, the additional information and comfort gained from a formal legal opinion may permit the avoidance of the time, expense and embarrassment associated with adoption of the wrong trademark.

A Canadian trademark search should review the following sources of information:

a)      The Trademarks Register of the Canadian Intellectual Property Office to review identical and potentially ‘confusingly similar’ marks within the same or overlapping channel(s) of trade; and

b)      A common law search of telephone directories, a NUANS search, Dun & Bradstreet databases, newspapers, domain names, internet searches, trade directories and news resources.

Additionally, if a North American search is required, it is necessary to also consider:

a)      The United States Patent and Trademark Office’s Trademarks Register to review identical and potentially ‘confusingly similar’ marks within the same class and identical or overlapping channel(s) of trade; and

b)      A search of the Trademark Registries of all fifty states to review identical and potentially ‘confusingly similar’ marks within the same class and identical or overlapping channel(s) of trade

Generally speaking, the deeper the scope of a search, the more thorough your analysis may be in terms of registrability and adoption risks. My recommendation in most cases is to pursue a full or comprehensive search in order to canvas not only applicable trademark registries, but also common law sources in order to reveal any potential adoption risks.

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Trademarks include word(s), logos and slogans and are generally used to distinguish particular goods and services from those of others within a particular channel of trade or industry. To elaborate further, section 2 of the Trade-marks Act defines a trade-mark as:

(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

The owner of an effectively utilized trademark will recognize that trademarks not only assist in differentiating their offerings from those of competitors, but they may also assist in developing market identity within a particular industry while, over time, establishing a measure of goodwill resulting from the positive reputation accrued through successful usage of the trademark.
 

For the consuming public certain trademarks become identified with an overall "brand". For example, the mark is used not only identify a product, service or its source, and as a means of assuring quality and/or authenticity. As a "brand", trademarks may serve to satisfy social and/or self-expressive needs through identifying with certain characteristics of associated wares or services such as quality, performance, safety, social/environmental awareness (i.e. fair trade), prestige, etc. Indeed, the acrual of goodwill along with the development of such characteristics has permitted many rights holders to expand the scope of their businesses into trade channels differing substantially from their initial efforts by simply utilizing a trademark connoting particular characteristics (i.e. construction machinery and related equipment) and crossing over into a field in which such characteristics are equally as valued in the minds of consumers (i.e. work boots). When contemplating the adoption of a trademark, consider your "brand", your corporate values and future direction(s) since your marketing approach may enhance the reception of your products and services over the long term.

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