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ARTICLE · 11 JANUARY 2021

How The Canadian Trademarks Office Considers Inherent Distinctiveness

Inherent distinctiveness is a measure of a trademark's originality – those elements that make a brand unique and recognizable to the public.

CanadaIntellectual Property

Inherent distinctiveness is a measure of a trademark's originality - those elements that make a brand unique and recognizable to the public. Trademarks indicate the source of goods or services for consumers. As such, distinctiveness is said to be the "essence of a protectable trademark and the foundation of trademark law1.

Canada Now Examines for Distinctiveness

Under the new Canadian trademark regime, which came into force on June 17, 2019, the Registrar of Trademarks (the "Registrar") may now object to a mark on the basis that it was not distinctive when it was applied for. Section 32(1)(b) of the Trademarks Act2  (the "Act") provides:

32 (1)  An applicant shall furnish the Registrar with any evidence that the Registrar may require establishing that the trademark is distinctive at the filing date of the application for its registration, determined without taking into account subsection 34(1), if any of the following apply:

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