This course explores the legal protection of ‘trade identity’ arising from the words, symbols and sounds associated with the source of goods and services. Students will learn about the importance of trademarks and brands in today’s consumer culture and marketing practices, the link between brands and economic value, and the means for protecting their value. The federal Trademarks Act is central to the course content.
Topics: Course topics include the special nature of “intellectual property” compared to other types of protectable property; evidence of “distinctiveness” to establish a trademark, the common law action for “passing off”; the criteria for trademark registration; the statutory and evidentiary basis for opposing an application or expunging a registration; the definitions and evidence for trademark use, infringement and genericide; and the grounds and evidence for succeeding in trademark litigation. As well as familiarizing students with the substantive law, the course will examine the tensions for policy-makers, with respect to the various interests at stake—from the entrepreneur’s interest in preventing ‘free-riding’, to the competitor’s interest in unrestrained competition, to the societal interest in avoiding consumer confusion, and finally to the national interest in international harmonization of trademark rights.
Objectives: By the end of the course, students will
– Understand the evolution of Trademark law, and the sometimes-controversial justifications for the protection of trademarks
– be familiar with the fundamentals of modern trademark law, including the main provisions of the Canadian Trademarks Act, the common law tort of passing off, and the enduring case precedents. – Address problems arising in Canadian trademark law relating to ownership, validity, rights, and infringement—from both sides of prospective disputes.
-Appreciate judicial efforts to interpret and apply the law, and be able to comment critically on case law and evidentiary disputes.