Marketing and Sales Law

Are written and define:

• The fundamental rights and freedoms of citizens
• the law making powers of the state legislative bodies

• Provides a system of self-regulation within the advertising industry 
  • Consumers who find ads offensice, can register complaints at www.adstandatds.com
  • Businesses can also register complaints regarding the ads of their competitors
  • Council decision can be appealed
  • If an advertiser fails to comply with a decision, ASC can issue a publication notice identifying the advertiser
• The code applies to:
  • Advertisers promoting the use of goods and services
  • Organizations seeking to improve their public image or advance a point of view
  • Governments
• The Code doesn't apply to:
  • Political advertising
  • Ads from a non-Canadian advertiser that originate outside Canada
  • Labelling
• ASC also oversees (beaufsichtigen) advertising to children

Passing off (Kennzeichenverletzung)

• Created to protect against counterfeit (Fälschung) goods, which is theft of goodwill (benefit and advantage of the good name, reputation of a business)

Elements of passing off:

• The plaintiff's (Kläger) goods, services or business must enjoy a reputation that is of some value worth protecting
• The defendant must have misrepresented its goods, service or business as those of the plaintiff
• There must either be actual confusion or a likelihood of confusion in the public's mind between the goods, services or business of the plaiantiff and those produced or licensed by the defendant
• The plaintiff must suffer or be likely to suffer damage in consequence of the passing off.

Passing off (Kennzeichenverletzung)

• Created to protect against counterfeit (Fälschung) goods, which is theft of goodwill (benefit and advantage of the good name, reputation of a business)

Elements of passing off:

• The plaintiff's (Kläger) goods, services or business must enjoy a reputation that is of some value worth protecting
• The defendant must have misrepresented its goods, service or business as those of the plaintiff
• There must either be actual confusion or a likelihood of confusion in the public's mind between the goods, services or business of the plaiantiff and those produced or licensed by the defendant
• The plaintiff must suffer or be likely to suffer damage in consequence of the passing off.

Registration under Trademarks Act gives national protection for use of the mark in association with the relevant goods or services

• Registration is a complete defence against a passing off claim
• Registration is good for 15 years and can be renewed indefinitely so long as mark is still in use
• Prior users of the mark can only seek to have the mark expunged (ausgelöscht)

The mark must not be:

• A word that is primarly the name or surname of al living person or a person who died within 30 years
• The name of the ware or service with which the mark is to be used
• Clearly descriptive or deceptively misdescriptive of the character or quality of the wares or services or their place of origin
• Likely to be confused with another registered trademark
• An official or prohibited mark

Disclaimers can be used!

Mark must be:

• Used or made known in Canada
  • 'Used' can be met if the mark is: Displayed on the goods or packaging when sold, or when exported from Canada or Displayed when services are being performed
  • 'Made known' can be met if a non Canadian party: Distributes the goods in Canada with mark displayed or uses the mark in advertisements received in Canada
• Registered and used in a country that is party to a relevant international convention
• Proposed to be used in Canada

When registration has been reviewed by Registrar, it is published in the Trade-marks Journal

• Other parties have two months to file notice of opposition

Grounds for opposition

• Application didn't comply with formality requirements
• Mark isn't registrable
• Applicant isn't the party entitled to registration 
• Mark isn't distinctive (unverwechselbar)

• The length of time the marks have been in use
• The nature of the goods, services or business
• The nature of the trade
• The degree of resemblance between the marks in appearance or sound or in the ideas suggested by them
• The inherent distinctiveness (Mindestmass an Unterscheidungskraft zu verleihen) of the marks and the extent to which they've become known.

Infringement occurs when another party uses the registered mark, or a mark that is confusingly similar to the registered mark, in association with goods or services for which the mark is registered

• Lack of intent to infringe is irrelevant
• Bona fide use of personal name as a trade name is not infringement,

Law is a body of rules of conduct to control the actions of individuals

• Changes with the needs of society
• Can be categorized into three functions
  • Settling ( beseitigung) disputes
  • Establishing rules of conduct (Benehmen)
  • Providing protection

• Supreme Court of Canada
• Court of Appeal
• Supreme Court
• Provincial Courts

• Federal Court of Appeal (Beschwerde)
• Federal Court of Trial Division (Gerichtsverhandlung)

• Supreme Court of Canada
• Court of Appeal
• Supreme Court
• Provincial Courts

• Federal Court of Appeal (Beschwerde)
• Federal Court of Trial Division (Gerichtsverhandlung)

• Takes priority over common law, due to principal of parliamentary supremacy
  • Much easier to modify statutes than common law
  • Can be used to codify common law
• Statute begins as bill
  • Passes three readings, allowing for debate and study (If federal bill also goes to Senate)
  • If approved, Governor General (federally) or Lieutenant Governor (provencial) gives royal assent
  • Statute then becomes binding in law when proclaimed

Constitution Act, 1867

• Division of Powers
  • Provincial powers (Property and civil rights)
  • Federal powers (Regulation of trade and commerce, Copyright, Patents and Residual power)

Constitution Act, 1982

• Amending formula (Verbesserte version)
• Charter of Rights and Freedoms
  • Section 1 - Limitations clause
  • Section 2 b - Freedom of expression
  • Applies only to government actions
  • Remedies (Rechtsmittel) for breach (Gesetztesbruch)  include striking down, and damages

• Passing off
• Registration Requirements
• Opposition to Registration
• Confusion Factors
• TM Infringement
• TM-Dilution (Sector 22)
• Comparative Advertising and Remedies
• Expunging (Löschen) a Registratioin
• Assignment and Licensing
• Other forms of Trademarks