There is no requirement in Canada that a product be marked as patented, although it may be prudent to do so in order to give notice to third parties of the existence of a patent. However, it is a criminal offence to mark an article as “patented” if it has not been patented in Canada. Applications for drug patents are further subject to specific regulatory regimes under the Patent Act relating to litigation proceedings and excessive price control. Trademarks Canada is a signatory to CUSMA, the Paris Convention, TRIPS and the Nice Agreement, which requires that the goods and services in a trademark application are stated according to the Nice Classification. Canada also implemented the Madrid Protocol in 2019, which permits member countries to use the international registration system to designate trademarks for registration in various countries, including Canada. Canadian trademarks are governed by the federal Trademarks Act , which was amended in 2019 to eliminate the requirement in the application process to claim or show use of the trademark in Canada. However, if a trademark is not commercially used in Canada for a period of three consecutive years following registration and such non-use cannot be excused, the registration may be cancelled at the request of any third party. Unlike many other countries, Canada recognizes trademark rights arising from the commercial use of a mark alone, without registration. An unregistered mark may therefore prevent subsequent use or registration by another person of a confusingly similar mark if the prior user can prove that its mark is distinctive and has acquired goodwill through use in the same trading area in Canada. However, unregistered trademark rights can be limited in scope and, at times, more difficult to enforce. Registration of a trademark in Canada is therefore generally advisable.
Unlike many other countries, Canada recognizes trademark rights arising from the commercial use of a mark alone, without registration.
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Doing Business in Canada
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