The issue of whether a trademark is "used" in Canada
is of paramount importance for purposes of securing, maintaining
and enforcing trademark rights here. The impact of e-commerce and
web based commercial activities have, however, forced Canadian
courts to reevaluate traditional concepts of trademark
"use", particularly in connection with the performance of
services in Canada, resulting in very divergent results. The issue
is of particular relevance to foreign trademark owners seeking to
secure or enforce trademark rights in Canada without having a
physical presence here.
The Trademarks Act states that a mark is used in
association with goods if the mark is displayed on the goods or
their packaging, or otherwise so associated with the goods at the
time of sale in the ordinary course of trade.1 In the
case of services, the Act states that a mark is used with services
if it is "used or displayed in the performance or advertising
of those services". This has
