Is E-Commerce Changing The Definition Of Trademark "Use" In Canada?

Several recent decisions of the Canadian courts and the Trade-marks Opposition Board (the “Board”) analyze the impact of e-commerce on claims of trademark “use” in Canada. “Use” is key to both registering and maintaining a trademark registration in Canada.  These decisions are of particular importance to foreign trademark owners seeking trademark protection in the absence of a physical presence in Canada (e.g. a retail establishment or hotel). In both opposition and non-use proceedings, the Board seems to be closely scrutinizing the nature of services offered in Canada when the primary contact with consumers is via the Internet. 

Under section 4 of the Trade-marks Act (the “Act”), a trademark is used in association with services if it is “used or displayed in the performance or advertising of those services.” This has been interpreted to require performance of the services in Canada.  For wares, the trademark must be displayed on the wares themselves, or possibly on