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LAW 851 Trademarks & Unfair Competition Units: 3.00
Trademark law protects trade identity by providing private remedies for the unauthorized use of trademarks and other distinctive indicia. Owners of trademarks have the exclusive right, under the Trademarks Act, and substantially in common law, to use a mark to indicate the source of a good or service and to protect related intangibles of commercial value. Unfair competition torts and common law protections will be discussed in the first part of the course. The main focus is, however, on the legislation and its impact on private rights to regulate the use of trademarks, trade names, and unfair competitive practices. Students will learn how the common law regulation of unfair competition (with our focus on the tort of passing off) complements the statutory protections afforded for brands and logos that now dominate modern consumer culture. Attention is given to theoretical justifications and normative frameworks for trademark protection; underlying public policy objectives; the basis for making a trademark application and grounds for opposition; claims to title; the grounds for attacking validity; the forms of infringement; the relationship between trademarks and trade names; and the significant changes that the Canadian trademark regime has recently undergone, most notably in the definition of a trademark and the basis for registration. These changes promise to shift the law towards greater protection for unconventional marks (e.g. scents) and unused marks, with potentially significant implication for marks-holders, competitors, and the public. Offered up for discussion is the interests of stakeholders, how they have played out, and may best be served, under Canadian law: from the desire of traders to prevent free-riding and to promote free and fair competition, to the consumer and public interest in protecting the integrity of trade in the market of goods and services from consumer confusion while retaining the ability to engage with a mark culturally in the market place of ideas to communicate meaning, even as parody, in recent jurisprudence. Cross listed with LAW 451.
Offering Faculty: Faculty of Law