This course explores the legal protection of ‘trade identity’ afforded by the common law and intellectual property rights over signs that indicate the source of goods or services. The course offers students the opportunity to learn about the laws that protect the logos and brands that make up such an essential feature of today’s consumer culture, modern marketing practices, and the creation of commercial value. The focus is on the federal Trademarks Act and its impact on private rights to regulate trademark use and unfair competitive practices. This will include analysis of newly enacted statutory reforms. Topics to be examined include the common law action for passing off, the criteria for trademark registration, the basis for opposing an application or expunging a registration, trademark distinctiveness, use and infringement.
As well as familiarizing students with the substantive law in the area, the course seeks to assess trademark law from the point of view of its normative justifications and policy objectives. We will inquire into the basis of the rights protected and their appropriate limits, and examine the law in light of the various interests at stake, from the entrepreneur’s interest in preventing ‘free-riding’ to the competitor’s interest in free competition, and from the consumer’s interest in avoiding confusion to the public’s interest in full information and free expression.
Objectives: By the end of the course, students will be familiar with the fundamentals of Canadian trademark law, including the common law tort of passing off and the main provisions of the Trade-marks Act. Students will also be able to explain and critically assess the principles, policies and practicalities that shape this area of law.
As such, students successfully completing this course will be able to:
– Address any problem in Canadian trade-mark law relating to ownership, validity, rights, infringment and defences;
– Identify, understand and explain the key provisions of Canada’s Trade-mark Act and judicial efforts to interpret and apply them;
– Recognize the main policy issues that underlie and animate trade-mark law and, in light of those issues, comment critically on case law and legislation;
– Understand and evaluate various justifications for the protection of trade-marks and other distinctive indicia, and recognize and describe the connection between these justifications and the evolution of the law.