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What can be trademarked?

Before one even starts to put together an application to register a trademark in Canada one should be aware that although a lot of things are allowed to be trademarked that doesn’t mean everything can be trademarked.

The Trade-marks Act of Canada is the federal legislation that regulates and sets out what may or may not be trademarked.

What can be trademarked in Canada?

Most things can be trademarked in Canada if they comply

Under the Trade-marks Act a trademark, a number of factors are listed that describe under which conditions a trademark cannot be registered.

 A trademark is able to be registered if it is not:

  • A word that is just the name or the surname of an individual who is living or has died within the preceding thirty years;
  • Clearly descriptive or descriptively undescriptive. Trademarks which contain words must also be scrutinized for any clearly descriptive or deceptively misdescriptive meanings, in English or French, as applied to the character or quality, place of origin, conditions of, or persons employed in the production of the associated goods or the performance of the services;
  • The name in any language of any of the goods or services in connection with which it is used or proposed to be used;
  • Cannot be confused with another registered trade-mark;
  • A mark of which the adoption is prohibited by certain sections of the act;
  • A denomination the adoption of which is prohibited by certain sections of the act;
  • In whole or in part a protected geographical indication, where the trade-mark is to be registered in association with a wine not originating in a territory indicated by the geographical indication;
  • In whole or in part a protected geographical indication, where the trade-mark is to be registered in association with a spirit not originating in a territory indicated by the geographical indication; and
  • Against the Olympic and Paralympic Marks Act, a mark the adoption of which is prohibited certain subsections of that act.

The above are compliance requirements that every applicant has to follow. If an applicant fails to adhere to the above it is very likely their application will not be approved.

What happens if my application for trademark contains any of the above?

If you try to trademark any of the above on a trademark application it is likely that your application will not be accepted. Remember that the trademarks office will scrutinize the application and if they find you’ve included a word that is a surname or in another language, it is likely the office will send back your application and ask you to fix the problem.

Registering a trademark is a very complex process and one has to have some legal knowledge about trademark law. People often hire trademark agents and/or lawyers to deal with applying for and registering trademarks as they will do the proper searches and handle the application process.

Should you wish to apply for a trademark it’s a good idea to at least consult with a trademark agent or trademark lawyer.

Read more:

A guide to trademarks

Trademarks Examination Manual — Page 4 of 5