This course examines the law of private remedies for the protection of ‘trade identity’ conferred by the exclusive right to use a mark to indicate the source of a product or service, as well as for related intangibles of commercial value. The focus is on the federal Trademarks Act and its impact on private rights to regulate the use of trademarks, tradenames and unfair competitive practices. Students will learn how the common law regulation of unfair competition (the tort of passing off) complements the statutory protections afforded for brands and logos that now dominate modern consumer culture. Some attention is given to theoretical justifications and normative frameworks for trade-mark protection; public policy objectives; the basis for making a trademark application and grounds for opposition, distinctiveness and use; infringement; title; the relationship to the law of trade-names under common law and federal and provincial incorporation statutes; and international obligations to which Canadian law must conform, notably through the Paris Convention and Trade Related Aspects of Intellectual Property Agreement. Students learn how the interests of stakeholders, from the desire to prevent free-riding to the promotion of free competition and free expression to the consumer and public interest in protecting the integrity of trade in wares and services from confusion, have played out under Canadian law.3 credits, fall term
