Perspectives from Canada
Queen Mary Studies in Intellectual Property series
Edited by Ysolde Gendreau
Chapter 1: The Challenge of Trademark Law in Canada’s Federal and Bijural System
Teresa Scassa In November of 2005, the Supreme Court of Canada handed down its decision in Kirkbi AG v. Ritvik Holdings Inc.1 The Court’s decision has implications for the interrelationship of the civil and common law traditions in dealing with unregistered trademarks in Canada. It also resolves lingering issues of the constitutional authority of the federal government to legislate with respect to trademarks. Canada’s constitution divides jurisdiction over the full range of legislative subject matter between federal and provincial governments. While intellectual property subjects have typically fallen within federal jurisdiction, some aspects of intellectual property protection are provincial in nature. This is particularly the case in the area of trademarks. Further, Canada is a mixed jurisdiction. While the three territories and nine of the ten provinces draw on the common law legal tradition, Quebec’s private law is drawn from the French civil law tradition. This federal and bijural nature of Canada’s legal system presents challenges for trademark law that cut across a variety of lines. This chapter will explore the issues which arise from the tension between the federal and provincial levels of government and between the co-existing common and civil law traditions, and will consider the impact of the Kirkbi decision on these issues. I FEDERALISM AND THE CONSTITUTIONAL DIVISION OF POWERS Legislative authority over various subject matters was divided between federal and provincial levels of government at the time of Canadian confederation in 1867. Throughout the course of Canada’s constitutional history, trends in the judicial interpretation of these...
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