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Trademark “use” in Canada: services


“Use” for Services is Easier Than for Goods

Yesterday we covered the Canadian trademark rules for “use” in relation to goods. (Read that post first if you haven’t.) The rules to establish “use” of your mark if you sell services are a little different and, in fact, are helpfully broader than if your mark only relates to selling goods.

Remember, for goods, in effect, you need a real sale to a real customer (ie, a paying customer) with the goods marked with your trademark.

This rule is one of the rules for establishing use of your mark in relation to the services that you sell. But you might be wondering how someone selling services can put a label on their services. How do you label or package a haircut or accounting advice or programming services?

And the answer is that you’re ok if your mark is somehow sufficiently shown while you provide the services. So, while figuring out your business model for delivery of your services, remember to plan for, and implement, your display method for your trademark while you deliver the services.

In this area, more is better. Business cards, letterhead, invoices, signs in your premises, any written material can all be marked with your trademark and thus brought to the attention of your customer or client while you provide the services.

Before we leave this first rule, one last thing to remember: to count as “use” of your mark for services, the services must be provided in Canada. That is, if your services are provided solely outside Canada, they won’t qualify for Canadian trademark protection.

Advertising of Services is “Use”, too

Compared to establishing “use” for goods, the trademark system in Canada relaxes the “use” rules for services in that advertising of one’s services is sufficient to establish “use” of a Canadian trademark for services.

With the rise of the internet, of course, this means that anyone can immediately start to advertise their services and doing so will qualify as valid “use” of their mark in order to establish the right to registration of their trademark.

But you’re not restricted in the kind of advertising. The older sources of print, television, radio, direct mail, and so on would all count.

Just remember that advertising does not count as “use” when it comes to goods. Only services. Again, for goods, the trademark owner must be out there with real sales of their trademarked product.

Services Need Defensive Trademark Practice, too

Lastly, as for goods, practice defensive trademark ownership to keep and even update evidence of “use” for your services.

Having solid proof of your date of “first use” of your mark can be critical if someone ever questions or even attacks your registration.

If you’re relying on the real sales test for “use” for your services, be sure to throw a copy of the invoice that was issued when the services were provided. Make a note of the place, date and even time for your trademark records.

For advertising, print out or save a screenshot of your webpage or a tear sheet from a printed advertisement or a copy of the flyer you circulated.



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