Trademarks Act

Marginal note:When trademark registrable

• 12 (1) Subject to subsection (2), a trademark is registrable if it is not

  • (a) a word that is primarily merely the name or the surname of an individual who is living or has died within the preceding thirty years;

  • (b) whether depicted, written or sounded, either clearly descriptive or deceptively misdescriptive in the English or French language of the character or quality of the goods or services in association with which it is used or proposed to be used or of the conditions of or the persons employed in their production or of their place of origin;

  • (c) the name in any language of any of the goods or services in connection with which it is used or proposed to be used;

  • (d) confusing with a registered trademark;

  • (e) a sign or combination of signs whose adoption is prohibited by section 9 or 10;

  • (f) a denomination the adoption of which is prohibited by section 10.1;

  • (g) in whole or in part a protected geographical indication identifying a wine, where the trademark is to be registered in association with a wine not originating in a territory indicated by the geographical indication;

  • (h) in whole or in part a protected geographical indication identifying a spirit, where the trademark is to be registered in association with a spirit not originating in a territory indicated by the geographical indication;

  • (h.1) in whole or in part a protected geographical indication, and the trademark is to be registered in association with an agricultural product or food — belonging to the same category, as set out in the schedule, as the agricultural product or food identified by the protected geographical indication — not originating in a territory indicated by the geographical indication; and

  • (i) subject to subsection 3(3) and paragraph 3(4)(a) of the Olympic and Paralympic Marks Act, a mark the adoption of which is prohibited by subsection 3(1) of that Act.

• Marginal note:Utilitarian function

  (2) A trademark is not registrable if, in relation to the goods or services in association with which it is used or proposed to be used, its features are dictated primarily by a utilitarian function.

• Marginal note:Registrable if distinctive

  (3) A trademark that is not registrable by reason of paragraph (1)(a) or (b) is registrable if it is distinctive at the filing date of an application for its registration, determined without taking into account subsection 34(1), having regard to all the circumstances of the case including the length of time during which it has been used.