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Trademarks and Official Marks (§9)
A trademark used on goods is a word, symbol or design (individually or in combination) displayed on commercial goods or their labels or container, usually for the primary purpose of identifying the goods (as sold or delivered) as being from the same or related sources. A trademark used for services is displayed in association with the provision and advertisement of the services; it is necessary that the services be performed for revenue (e.g., dry cleaning services). A trademark usually indicates that the goods or services come from, or are approved or sponsored by, the same source as all other goods or services provided in association with the same trademark. The trademark may also or instead indicate that the goods or services meet the same standard of quality as all other goods or services provided in association with the same trademark.
By contrast, an official mark is used by a government or government agency, or by other qualified institutions, including universities and those organizations that qualify as a "public authority". A public authority includes various non-profit organizations conducting their affairs at least in part for the benefit of the public. The official mark is any word(s) or symbol used to identify the wares or services in association with which it is used as having been produced, sold, delivered or performed under the patronage, approval or authority of such public authority or other qualifying entity.
Sometimes a given mark can function both as a trademark and as an official mark, and can be protected in each category.
Rights in an official mark are created through (1) use of the mark on goods or their packaging or labels, or by display in promotional or informational materials or in telecasts or the like in association with services; and (2) filing an application to register the mark, filed in the Trademarks Office. Note that use must precede the filing of an application. It is doubtful that use by a licensee qualifies, although such use may qualify to establish use of the mark as a trademark.
Section 9 of the Trademarks Act provides that "No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for, any badge, crest, emblem or mark of any university, or in respect of which the Registrar has, at the request of the university or public authority, as the case may be, given public notice of its adoption and use." This is a broad prohibition, and violation of the prohibition may be redressed by a civil cause of action in the Federal Court or in the various provincial courts.
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