Unique Designs Must Also Be Distinctive: Recent Ruling Of The Trademarks Opposition Board

The principal function of a trademark is to enable consumers to distinguish one's goods or services from those of a competitor in the marketplace.

In addition to looking at engaging logos and fanciful words, marketers are only bound by their imaginations in seeking out distinguishing devices. Trademarks can also comprise colours and shapes (i.e., the appearance or "get up" of a product as the trademark itself), and even sounds in some jurisdictions. Canadian courts, however, have found the distinctive character of colours and shapes to be quite weak. Brand owners should be mindful of this inherent limitation when determining a product's branding strategy. As the following Trademarks Opposition Board (the Board) decision demonstrates,¹ proving that a product's appearance is distinctive is not an easy burden to satisfy.