Trade-marks Act (R.S.C., 1985, c. T-13)

Act current to 2017-11-20 and last amended on 2017-09-21. Previous Versions

Importation and Exportation

Interpretation

Marginal note:Definitions

 The following definitions apply in sections 51.03 to 51.12.

customs officer

customs officer has the meaning assigned by the definition officer in subsection 2(1) of the Customs Act. (agent des douanes)

Minister

Minister means the Minister of Public Safety and Emergency Preparedness. (ministre)

owner

owner, with respect to a protected geographical indication identifying a wine or spirit or agricultural product or food, means the responsible authority, as defined in section 11.11, for the wine or spirit or agricultural product or food identified by the indication. (propriétaire)

protected mark

protected mark means a registered trade-mark or a protected geographical indication. (marque protégée)

relevant protected mark

relevant protected mark means

  • (a) a trade-mark registered for goods that is identical to, or cannot be distinguished in its essential aspects from, a trade-mark on such goods, including their labels or packaging, that are detained by a customs officer; or

  • (b) a protected geographical indication identifying, as the case may be, a wine or spirit, or an agricultural product or food of a category set out in the schedule, that is identical to, or cannot be distinguished in its essential aspects from, an indication on such a wine or spirit or such an agricultural product or food, or on their labels or packaging, that is detained by a customs officer. (marque protégée en cause)

working day

working day means a day other than a Saturday or a holiday. (jour ouvrable)

  • 2014, c. 32, s. 43;
  • 2017, c. 6, s. 70.

Prohibition

Marginal note:No importation or exportation
  •  (1) Goods shall not be imported or exported if the goods or their labels or packaging bear  —  without the consent of the owner of a registered trade-mark for such goods  —  a trade-mark that is identical to, or that cannot be distinguished in its essential aspects from, that registered trade-mark.

  • Marginal note:Exception

    (2) Subsection (1) does not apply if

    • (a) the trade-mark was applied with the consent of the owner of the trade-mark in the country where it was applied;

    • (b) the sale or distribution of the goods or, in the case where the trade-mark is on the goods’ labels or packaging, of the goods in association with the labels or packaging would not be contrary to this Act;

    • (c) the goods are imported or exported by an individual in their possession or baggage and the circumstances, including the number of goods, indicate that the goods are intended only for their personal use; or

    • (d) the goods, while being shipped from one place outside Canada to another, are in customs transit control or customs transhipment control in Canada.

  • Marginal note:Wine or spirits

    (2.1) Wine or spirits shall not be imported or exported if they, or their labels or packaging, bear a protected geographical indication and the wine or spirits

    • (a) do not originate in the territory indicated by the indication; or

    • (b) do originate in the territory indicated by the indication but were not produced or manufactured in accordance with the law applicable to that territory.

  • Marginal note:Agricultural products or food

    (2.2) An agricultural product or food of a category set out in the schedule shall not be imported or exported if it, or its label or packaging, bears a protected geographical indication and the agricultural product or food

    • (a) does not originate in the territory indicated by the indication; or

    • (b) does originate in the territory indicated by the indication, but was not produced or manufactured in accordance with the law applicable to that territory.

  • Marginal note:Exception

    (2.3) Subsections (2.1) and (2.2) do not apply if

    • (a) the sale or distribution of the wine or spirit or the agricultural product or food — or, if the label or packaging of that wine, spirit or agricultural product or food bears a protected geographical indication and the sale or distribution of that wine, spirit or agricultural product or food in association with that label or packaging — would not be contrary to this Act;

    • (b) the wine or spirit or the agricultural product or food is imported or exported by an individual in their possession or baggage and the circumstances, including the number of such goods, indicate that they are intended only for the individual’s personal use; or

    • (c) the wine or spirit or the agricultural product or food, while being shipped from one place outside Canada to another, is in customs transit control or customs transhipment control in Canada.

  • Marginal note:Restriction

    (3) The contravention of subsection (1), (2.1) or (2.2) does not give rise to a remedy under section 53.2.

  • 2014, c. 32, s. 43;
  • 2017, c. 6, s. 71.

Request for Assistance

Marginal note:Request for assistance
  •  (1) The owner of a protected mark may file with the Minister, in the form and manner specified by the Minister, a request for assistance in pursuing remedies under this Act with respect to goods imported or exported in contravention of section 51.03.

  • Marginal note:Information in request

    (2) The request for assistance shall include the name and address in Canada of the owner of the protected mark and any other information that is required by the Minister, including information about the trade-mark and the goods for which it is registered or, in the case of a geographical indication, the goods identified by the indication.

  • Marginal note:Validity period

    (3) A request for assistance is valid for a period of two years beginning on the day on which it is accepted by the Minister. The Minister may, at the request of the owner of the protected mark, extend the period for two years, and may do so more than once.

  • Marginal note:Security

    (4) The Minister may, as a condition of accepting a request for assistance or of extending a request’s period of validity, require that the owner of the protected mark furnish security, in an amount and form fixed by the Minister, for the payment of an amount for which the owner of the protected mark becomes liable under section 51.09.

  • Marginal note:Update

    (5) The owner of the protected mark shall inform the Minister in writing, as soon as feasible, of any changes to

    • (a) the validity of the protected mark that is the subject of the request for assistance;

    • (b) the ownership of the protected mark; or

    • (c) the goods for which the trade-mark is registered or, in the case of a geographical indication, the goods identified by the indication.

  • 2014, c. 32, s. 43;
  • 2017, c. 6, s. 72.

Measures Relating to Detained Goods

Marginal note:Provision of information by customs officer

 A customs officer who is detaining goods under section 101 of the Customs Act may, in the officer’s discretion, to obtain information about whether the importation or exportation of the goods is prohibited under section 51.03, provide the owner of a relevant protected mark with a sample of the goods and with any information about the goods that the customs officer reasonably believes does not directly or indirectly identify any person.

  • 2014, c. 32, s. 43;
  • 2017, c. 6, s. 78.
Marginal note:Provision of information to pursue remedy
  •  (1) A customs officer who is detaining goods under section 101 of the Customs Act and who has reasonable grounds to suspect that the importation or exportation of the goods is prohibited under section 51.03 may, in the officer’s discretion, if the Minister has accepted a request for assistance with respect to a relevant protected mark filed by its owner, provide that owner with a sample of the goods and with information about the goods that could assist them in pursuing a remedy under this Act, such as

    • (a) a description of the goods and their characteristics;

    • (b) the name and address of their owner, importer, exporter and consignee and of the person who made them;

    • (c) their quantity;

    • (d) the countries in which they were made and through which they passed in transit; and

    • (e) the day on which they were imported, if applicable.

  • Marginal note:Detention

    (2) Subject to subsection (3), the customs officer shall not detain, for the purpose of enforcing section 51.03, the goods for more than 10 working days  —  or, if the goods are perishable, for more than five days  —  after the day on which the customs officer first sends or makes available a sample or information to the owner under subsection (1). At the request of the owner made while the goods are detained for the purpose of enforcing section 51.03, the customs officer may, having regard to the circumstances, detain non-perishable goods for one additional period of not more than 10 working days.

  • Marginal note:Notice of proceedings

    (3) If, before the goods are no longer detained for the purpose of enforcing of section 51.03, the owner of a relevant protected mark has provided the Minister, in the manner specified by the Minister, with a copy of a document filed with a court commencing proceedings to obtain a remedy under this Act with respect to the detained goods, the customs officer shall continue to detain them until the Minister is informed in writing that

    • (a) the proceedings are finally disposed of, settled or abandoned;

    • (b) a court directs that the goods are no longer to be detained for the purpose of the proceedings; or

    • (c) the owner of the mark consents to the goods no longer being so detained.

  • Marginal note:Continued detention

    (4) The occurrence of any of the events referred to in paragraphs (3)(a) to (c) does not preclude a customs officer from continuing to detain the goods under the Customs Act for a purpose other than with respect to the proceedings.

  • 2014, c. 32, s. 43;
  • 2017, c. 6, ss. 73(F), 78, 79(E).
 
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