Monsters in the IP Closet — Infringements in the Night

Create Time 2019-03-06 11:03    Views:15448

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You’re lying in bed drifting away when thump! A noise from the kitchen. You pad downstairs rubbing your blurry eyes; most likely someone is having a midnight fridge “inspection.” You switch on the kitchen light and come face to face with — yourself? A shadowy figure wearing your face like a portrait in negative, rooting through drawers and cupboards. The creature freezes and the two of you stare at each other in a moment of stunned silence. Then your demonic twin grins wickedly, revealing sharp teeth and red eyes, before disappearing in a puff of smoke along with your keys and one sock out of every pair you own.

A nighttime scare like this is akin to the feeling you get when you discover that someone has infringed on your intellectual property. You’re surfing through the internet when suddenly you see your product, but you know it’s not your product, and you see someone else making a fortune on your trademarked property.

Do not worry! Much like rings of salt and garlic cloves, if you have a solid trademark on your intellectual property and if you have Witmart to help you through, you have the tools you need to take action.

What are your main options for fighting trademark infringement in Canada? 

1. Criminal Action: 

This is the course to take if someone is seriously counterfeiting your product and branding and trying to pass their goods as yours to get your market value. Take the manufacturer who tried to sneak fake iPhones over the Canadian border. Small hint — it won’t go so well for them once they’re caught.

2. Civil Action:

This action applies to infringers who violate sections 19 and 20 of the Trademarks Act. These are businesses who mistakenly or fraudulently are using a trademark that is confusingly similar to your own for the sale and distribution of their products.

Where does an infringement case get settled?

You can settle your case in either the Federal Court or a provincial Supreme Court.

How long does it take?

The time frame is determined by how you choose to go about the proceedings. If you go by way of application, where you basically put everything on paper and then schedule a hearing it could take a minimum of six months and court backlogging can slow things down even more. If you go by way of action where you do everything live in court, it could take several years.

Be aware that the statute of limitations is six years from when the action arose if the issue took place in more than one province, and is as little as two years in some select provinces. Take your case to Witmart to ensure efficient and timely action. 

In the meantime, you can file for an interim or interlocutory injunction (both are temporary cease and desists) throughout the court proceedings to prevent further damage to your trademark. 

What resolutions can I get in court?

Depending on the nature of the infringement, there are several resolutions:

  • Temporary injunction

  • Permanent injunction

  • Damages compensation 

  • An accounting of profits or the destruction/dispossession of all infringing goods, services, equipment and designs 

  • An award of costs

In some cases, you could receive punitive and exemplary damages. Be aware that you will only be awarded compensation if you can prove that:

  • The other business’ mark could be confused with your own

  • Their use of the trademark is not a bona fide use

  • They have damaged the goodwill of your mark

  • The other company has profited by their use of your mark

Finding that your intellectual property has been infringed can be distressing. Taking your case to court can be daunting. You don’t have to face your demons alone when you have Witmart beside you. Our experts will banish your fears with their efficiency, expertise and maybe even a little spell or two. 

Want to add a little Witmart magic to your trademark maintenance plan? Get in touch with one of our trademark specialists today at 1-877-948-6278 to discuss your defence options or visit our website to get a free consultation today!

Disclaimer: This website is not intended to offer legal advice or to be a substitute for a consultation on a case-by-case basis with an attorney. The information provided above is meant for informational purposes only and may be subject to change. 

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