In Canada the law of trademarks is a crucial piece of the bouquet of intellectual property rights that are available to companies and individuals. Issues in regard to registered trademarks stem from questions of similarity – is the competitor’s product sufficiently similar to warrant a claim for trademark infringement?
However, even unregistered trademarks can be protected in Canada using passing off. Passing off is treated both as a common law tort as well as a statutory rule under the Trademarks Act, 1985. Passing off as a cause of action is used to protect the interests of both the plaintiff, whose business is being affected by the unfair representations made by his competition, and the interests of the public at large who deserve to be clearly informed about the product they are purchasing. Making one’s product appear like an already successful brand drives sales specifically via this similarity in appearance – they are capitalizing on the goodwill of another company. Thus, (1) if a company has attained goodwill via its design; (2) the public would most likely be deceived or confused by the similarity in design and (3) there is some damage to the plaintiff – an action in passing off is likely to help defend the business from such unfair competition.
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