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What's a trade-mark?

A trade-mark protects a "mark." Not all marks are a trademark and not all trade-marks are registerable under the Trade-marks Act, nor protected under the common law doctrine of passing off. A right in a trade-mark is only acquired through adoption or use and is only maintained through use.

Unlike a patent, which protects products and processes, a trademark relates to the distinctiveness of its marketing. Trademark seeks to indicate the source of a product, so that consumers know what they are buying and from whom.

The Trade-marks Act, which is a federal statue and applies throughout Canada, provides a definition of a trademark:

(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