The Court's comments also provide some guidance for trade-marks owners, specifically: retain records of the use of owned trade-marks in perpetuity and ensure that such specimens are dated and remember that marketing information is insufficient to establish the use of a trade-mark in association with wares.
Kamsut claimed in its application to the Court that Jaymei was not entitled to the Jaymei Mark pursuant to Section 16(1) of the Trade-marks Act, on the basis that on the date of first use of the Jaymei Mark it was confusing with the Kamsut Mark.
On the issue of Section 16(1) of the Trade-marks Act, the Court considered whether the Jaymei Mark was registerable on the basis that it was not confusing with a mark that had been previously used or made known in Canada.
com> for a website that criticizes the owner of the trade-mark or name or its goods, services or business.
Cybergriping has been held not to incur liability for a trade-mark cause of action provided that the activity is not commercial.
39) Some decisions adopt the view that a "-sucks" domain name is not necessarily privileged as free speech, holding that the use of another person's trade-mark in a domain name is more analogous to a source identifier than to a protected communication, and that the scope of protection for speech depends in part on the intentions of the registrant.
Boston Pizza or plaintiff), applied to a British Columbia federal court to have it expunge the registration of the trade-marks "Boston Chicken" (registration number TMA398,700) and "Boston Chicken" design (registration number TMA396,282).
Moreover, if a party cannot achieve distinctiveness by foreign use of its mark, then foreign trade-marks will have significant difficulty in achieving or maintaining registration in Canada.
The result is that foreign registered trade-marks which are not inherently distinctive may well see their registration in Canada at risk in expungement proceedings unless they can show some degree of acquired distinctiveness through use in Canada.