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CPATA TM Knowledge Exam practice questions

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Question 1Canadian trademark law: Trademarks Act and Regulations

Under the Trademarks Act, which term defines a mark used by a person to distinguish their goods or services from those of others?

  1. Trade name
  2. Distinguishing guise
  3. Certification mark
  4. Trademark Correct answer.

Explanation

Section 2 defines a trademark as a mark used or proposed to be used by a person to distinguish their goods or services from those of others. A trade name is the business name itself, a certification mark certifies standards, and a distinguishing guise concerns the shape or packaging of goods.

Question 2Canadian trademark law: Trademarks Act and Regulations

What is the current term of protection for a trademark registration in Canada, and how is it maintained?

  1. Ten years from filing, renewable for further ten-year periods
  2. Ten years from registration, renewable for further ten-year periods Correct answer.
  3. Twenty years from registration, renewable indefinitely
  4. Fifteen years from registration, renewable for further fifteen-year periods

Explanation

Since the 2019 amendments, a registration is valid for ten years from the date of registration and may be renewed for successive ten-year periods on payment of the renewal fee. Renewal may be requested within the prescribed period before expiry and, with a surcharge, within a grace period after expiry.

Question 3Canadian trademark law: Trademarks Act and Regulations

Which statement best describes the requirement that a trademark be "used" in Canada under the Act?

  1. Use begins only once the mark appears on a registered trademark certificate
  2. Any advertisement mentioning the mark anywhere in the world counts as use in Canada
  3. Use requires actual commercial use in the normal course of trade, not merely token or sham use Correct answer.
  4. A single sale to a friend is always sufficient to establish use

Explanation

Use under the Act means genuine use in the normal course of trade in connection with the goods or services, not token use designed only to create rights. The Act prescribes specific forms of use for goods, services, and exports. Sham or colourable use does not establish the required use.

Question 4Canadian trademark law: Trademarks Act and Regulations

Which enactment and body currently govern the procedural rules for filing and prosecuting trademark applications in Canada?

  1. The Copyright Act and the Copyright Board
  2. The Competition Act and the Competition Tribunal
  3. The Trademarks Act and the Trademarks Regulations, administered by the Canadian Intellectual Property Office Correct answer.
  4. The Patent Act and the Commissioner of Patents

Explanation

Trademark filing and prosecution in Canada are governed by the Trademarks Act together with the Trademarks Regulations, administered by CIPO. The Copyright Act, Patent Act, and Competition Act govern different subject matter and bodies.

Question 5Canadian trademark law: Trademarks Act and Regulations

A person who has a legitimate interest may request that the Registrar send a section 45 notice. What is the purpose of that notice?

  1. To require the registered owner to show the mark was used in Canada during the relevant period Correct answer.
  2. To compel the owner to assign the registration to the requesting party
  3. To cancel the registration automatically without any evidence
  4. To require the owner to re-file a new application

Explanation

A section 45 notice requires the registered owner to furnish evidence showing use of the trademark in Canada in association with each of the goods or services during the three-year period immediately preceding the notice, or to show special circumstances excusing non-use. Failure to respond can result in expungement of the registration.

Question 6Canadian trademark law: Trademarks Act and Regulations

Which of the following is a ground of opposition expressly listed in section 38 of the Trademarks Act?

  1. The applicant has not filed a patent application
  2. The applicant's goods are priced too high
  3. The applicant's mark is confusing with a registered trademark Correct answer.
  4. The applicant has not paid a marketing levy

Explanation

Section 38 lists grounds of opposition including that the application does not comply with statutory requirements and that the trademark is not registrable, including because it is confusing with a registered trademark. Pricing, marketing levies, and patents are irrelevant to trademark opposition.

Question 7Canadian trademark law: Trademarks Act and Regulations

Under the Trademarks Act, which of the following cannot be registered as a trademark?

  1. A word that is primarily merely the name or surname of an individual who is living or has died within the preceding thirty years Correct answer.
  2. A distinctive logo combining a word and a design
  3. A colour applied to the whole visible surface of goods
  4. A coined word with no dictionary meaning

Explanation

Section 12(1)(a) prohibits registration of a word that is primarily merely the name or surname of an individual who is living or has died within the preceding thirty years. Coined words, distinctive logos, and colour marks applied to goods may be registrable if they are distinctive.

Question 8Canadian trademark law: Trademarks Act and Regulations

What is the effect of section 19 of the Trademarks Act on a registered trademark?

  1. The registration gives the owner exclusive rights only in the province of registration
  2. The registration automatically invalidates all prior common-law rights
  3. The registration prevents anyone from using the same word in any context
  4. The registration gives the owner the exclusive right to the use of the trademark throughout Canada in respect of the goods or services listed Correct answer.

Explanation

Section 19 grants the registered owner the exclusive right to use the trademark throughout Canada in respect of the goods or services specified in the registration. The right is limited to those goods or services and does not extend to unrelated uses.

Question 9Canadian trademark law: Trademarks Act and Regulations

A Canadian company applies to register a trademark that is confusing with a registered trademark already on the register. Which ground of opposition is most directly available to the prior owner?

  1. The trademark is not registrable under section 12(1)(d) Correct answer.
  2. The applicant failed to provide a patent search
  3. The mark is primarily merely descriptive of the goods
  4. The trademark is prohibited under section 9

Explanation

Section 12(1)(d) provides that a trademark is not registrable if it is confusing with a registered trademark. The prior owner can oppose on that basis under section 38(2)(b). Descriptiveness is a separate ground and section 9 concerns prohibited marks.

Question 10Canadian trademark law: Trademarks Act and Regulations

An applicant files an application based on proposed use. What must the applicant do before the mark can be registered?

  1. File a declaration of proposed use only
  2. File a separate application in each province
  3. File a declaration of use confirming use in Canada has begun Correct answer.
  4. Obtain a court order approving the use

Explanation

Where an application is based on proposed use, the applicant must file a declaration that use of the trademark in Canada has begun in association with the goods or services before the mark can be registered. The declaration is a prerequisite to registration for proposed-use applications.

Question 11Canadian trademark law: Trademarks Act and Regulations

Which of the following best describes the test for confusion under section 6 of the Trademarks Act?

  1. Whether the marks are registered in the same class
  2. Whether the two marks are identical in every respect
  3. Whether consumers actually purchased the wrong product
  4. Whether the use of both trademarks in the same area would likely lead to the inference that the goods or services are from the same source Correct answer.

Explanation

Section 6 provides that a trademark is confusing with another if the use of both in the same area would be likely to lead to the inference that the goods or services associated with them are from the same source. The test is hypothetical and considers all surrounding circumstances, not actual confusion or identical marks.

Question 12Canadian trademark law: Trademarks Act and Regulations

An applicant seeks to register a mark that is primarily merely descriptive of the character or quality of the goods. What is the likely outcome?

  1. The application will be allowed automatically because descriptiveness is irrelevant
  2. The application will be refused because descriptive marks are always prohibited under section 9
  3. The application will be refused under section 12(1)(b) unless distinctiveness is established Correct answer.
  4. The application will be allowed only if filed in French

Explanation

Section 12(1)(b) prohibits registration of trademarks that are either clearly descriptive or deceptively misdescriptive of the character or quality of the goods or services. Such a mark may be registered if it has acquired distinctiveness, but otherwise the application will be refused.

Question 13Canadian trademark law: Trademarks Act and Regulations

Which statement correctly describes the treatment of a trademark that has become generic?

  1. It automatically converts into a certification mark
  2. It remains valid because registration is permanent
  3. It may be expunged because it has lost distinctiveness Correct answer.
  4. It can only be challenged by the Registrar

Explanation

A trademark that has become generic loses its distinctiveness and may be expunged from the register because it no longer distinguishes the owner's goods or services. Any person may apply to the Federal Court for an order expunging a registration on that basis.

Question 14Canadian trademark law: Trademarks Act and Regulations

A party wishes to rely on a trademark it has used in Canada without registering it. Which statement is correct?

  1. Common-law rights may be enforced through passing off under section 7(b) Correct answer.
  2. Only registered marks can be enforced under the Act
  3. Unregistered marks enjoy no protection whatsoever
  4. Unregistered marks are protected only if they are famous worldwide

Explanation

Section 7(b) codifies the action of passing off, allowing an unregistered user to enforce rights where goodwill exists and misrepresentation causes damage. Registration is not a prerequisite to passing-off protection, though it provides additional statutory rights.

Question 15Canadian trademark law: Trademarks Act and Regulations

What is the significance of the Nice Classification in Canadian trademark practice?

  1. It establishes the test for confusion
  2. It determines the term of protection
  3. It groups goods and services into classes for the purposes of the application and fees Correct answer.
  4. It governs the language of the examination

Explanation

Canada uses the Nice Classification to group goods and services into classes, and since 2019 fees are calculated per class. Classification does not determine the term of protection or the confusion test.

Question 16Canadian trademark law: Trademarks Act and Regulations

An applicant files a trademark application on the basis of use and registration abroad. What must be shown to rely on section 16(2)?

  1. The application was filed in or for a country of the Union and the mark was used abroad before the Canadian filing date Correct answer.
  2. The foreign application was filed after the Canadian application
  3. The foreign registration is older than ten years
  4. The mark is registered in at least three countries

Explanation

Section 16(2) permits a filing basis based on use and registration abroad where the applicant has applied for or registered the mark in a country of the Union and used it there before the Canadian filing date. The Canadian application must claim that basis and be filed within the prescribed period.

Question 17Canadian trademark law: Trademarks Act and Regulations

Which of the following is a prohibited mark under section 9 of the Trademarks Act?

  1. The flag or coat of arms of a country Correct answer.
  2. A coined word with no meaning
  3. A distinctive colour
  4. A surname used for more than thirty years

Explanation

Section 9 prohibits registration of certain marks, including the flag or coat of arms of a country and other specified emblems, without consent. Coined words, colours, and surnames are not prohibited by section 9.

Question 18Canadian trademark law: Trademarks Act and Regulations

What is the effect of section 20 of the Trademarks Act on infringement?

  1. A person infringes only by copying the exact registered mark
  2. A person infringes only if they are a registered trademark agent
  3. A person infringes only if they sell goods in the same province
  4. A person infringes by using a confusing trademark in association with goods or services Correct answer.

Explanation

Section 20 provides that a person infringes a registered trademark by using a confusing trademark or trade name in association with goods or services. The test is confusion under section 6, not exact copying.

Question 19Canadian trademark law: Trademarks Act and Regulations

A trademark agent is preparing evidence for a section 45 proceeding. Which point is most important?

  1. Evidence must include a patent search
  2. Evidence must show use in Canada during the relevant three-year period for each good or service Correct answer.
  3. Evidence must show the mark is famous internationally
  4. Evidence must be filed only in paper form

Explanation

In a section 45 proceeding, the owner must show use in Canada during the three-year period preceding the notice for each of the goods or services, or establish special circumstances. Evidence of international fame or patent searches is irrelevant.

Question 20Canadian trademark law: Trademarks Act and Regulations

Which statement best describes the Registrar's discretion to extend the time to file a statement of opposition?

  1. The Registrar may extend the time in accordance with the Regulations, and further extensions may require payment of a fee Correct answer.
  2. Only the Federal Court may extend opposition deadlines
  3. Extensions are automatic without any request
  4. Extensions are never permitted

Explanation

The Trademarks Regulations permit the Registrar to extend certain deadlines, including for filing a statement of opposition, generally on request and payment of the prescribed fee. Extensions are not automatic and are subject to the regulatory scheme.

Question 21Canadian trademark law: Trademarks Act and Regulations

An applicant wants to register a trademark consisting of a three-dimensional shape of a container. What must the applicant establish?

  1. That the distinguishing guise is distinctive and not functional Correct answer.
  2. That the shape is described in a patent
  3. That the shape is purely functional
  4. That the shape is identical to a competitor's product

Explanation

A distinguishing guise may be registrable if it is distinctive and not primarily functional. Functionality concerns whether the shape is dictated by the goods' utility rather than serving as a badge of origin.

Question 22Canadian trademark law: Trademarks Act and Regulations

What is the legal effect of a trademark registration being expunged by the Federal Court?

  1. The registration is removed from the register and the owner loses the statutory rights it conferred Correct answer.
  2. The registration is automatically transferred to the applicant
  3. The registration remains valid but with reduced goods
  4. The registration is converted into a patent

Explanation

Expungement removes the registration from the register and ends the statutory rights conferred by registration. The mark may still be protected through passing off if common-law rights exist, but the registration itself no longer exists.

Question 23Canadian trademark law: Trademarks Act and Regulations

A competitor uses a registered trademark in a comparative advertisement in a way that is not confusing. Which statement best reflects the Act?

  1. The competitor must obtain a licence in all cases
  2. Use that is not confusing and is in accordance with honest practices may not constitute infringement Correct answer.
  3. Any use of a registered mark by a competitor is infringement
  4. Comparative advertising is expressly prohibited by the Act

Explanation

Infringement under section 20 requires use of a confusing trademark. Where a competitor's use is not confusing and is in accordance with honest practices in commercial matters, it may fall outside infringement. The Act does not prohibit all comparative advertising.

Question 24Canadian trademark law: Trademarks Act and Regulations

Which statement correctly describes the relationship between the Trademarks Act and the Trademarks Regulations?

  1. The Regulations are enacted by the Federal Court
  2. The Act sets substantive rights and the Regulations prescribe procedural and administrative details Correct answer.
  3. The Act applies only to registered marks and the Regulations only to unregistered marks
  4. The Regulations override the Act in case of conflict

Explanation

The Trademarks Act establishes substantive rights such as registrability and infringement, while the Trademarks Regulations set out procedural and administrative requirements like forms, fees, and deadlines. Regulations are subordinate legislation and cannot override the Act.

Question 25Canadian trademark law: Trademarks Act and Regulations

A party seeks to invalidate a registered trademark on the basis that it was not distinctive at the date of registration. Which forum and provision are most appropriate?

  1. The Federal Court under section 18(1)(b) Correct answer.
  2. The Provincial Court under the Copyright Act
  3. The Registrar under section 45 only
  4. The Competition Tribunal under the Competition Act

Explanation

Section 18(1)(b) allows the Federal Court to invalidate a registration if the trademark was not distinctive at the date of registration. Section 45 is a separate administrative procedure, and the other bodies lack jurisdiction over trademark validity.

Question 26Canadian trademark law: Trademarks Act and Regulations

Under the Trademarks Act, what is the length of the initial registration term and the renewal term for a trademark?

  1. Ten years for the initial term, renewable for successive ten-year terms Correct answer.
  2. Seven years for the initial term, renewable for successive fourteen-year terms
  3. Fifteen years for the initial term, renewable for successive fifteen-year terms
  4. Twenty years for the initial term, renewable indefinitely in ten-year increments

Explanation

Section 46 of the Trademarks Act provides that a registration is effective for ten years from the date of registration. It may be renewed for successive ten-year periods upon payment of the prescribed renewal fee, so protection can be maintained indefinitely.

Question 27Canadian trademark law: Trademarks Act and Regulations

A person who is not the owner of a registered trademark uses an identical mark on identical goods without consent. Which cause of action does section 20 of the Trademarks Act primarily create?

  1. Depreciation of goodwill under section 22
  2. Unfair competition under the Competition Act
  3. Passing off at common law
  4. Infringement of the registered trademark Correct answer.

Explanation

Section 20 gives the registered owner the exclusive right to use the mark and a right of action against any person who infringes it. Use of an identical mark on identical wares or services without consent is a direct infringement under section 20.

Question 28Canadian trademark law: Trademarks Act and Regulations

Which statement accurately describes the Registrar's obligation regarding the register of trademarks?

  1. The Federal Court maintains the register and the Registrar merely indexes applications
  2. The register is maintained by the Canadian Intellectual Property Office as a private database
  3. The Registrar maintains the register and records registrations, renewals and amendments to it Correct answer.
  4. The Registrar maintains the register but only for marks currently in use in Canada

Explanation

Section 26 of the Trademarks Act requires the Registrar to keep a register of trademarks in which all registrations are recorded. The register is a public record and entries are amended on renewal, assignment and other changes.

Question 29Canadian trademark law: Trademarks Act and Regulations

An applicant files an application in Canada and later wants to claim priority based on an earlier application filed in a treaty country. Within what period must the Canadian application be filed to claim that priority?

  1. Within six months of the earliest foreign application Correct answer.
  2. Within eighteen months of the earliest foreign application
  3. Within twelve months of the earliest foreign application
  4. Within three months of the earliest foreign application

Explanation

Section 16 of the Trademarks Act allows an applicant to claim priority based on a foreign application filed in a country that is a party to the Paris Convention or a WTO member. The Canadian application must be filed within six months of the earliest such foreign application.

Question 30Canadian trademark law: Trademarks Act and Regulations

A registered trademark owner discovers that a third party has used a confusingly similar mark in Canada for several years. Which limitation period applies to an infringement action before the Federal Court?

  1. A strict two-year limitation applies under the Trademarks Act itself
  2. Infringement actions are barred one year after the infringing use begins
  3. There is no statutory limitation period in the Trademarks Act, but provincial limitation laws may apply to certain claims Correct answer.
  4. A strict six-year limitation applies under the Trademarks Act itself

Explanation

The Trademarks Act does not prescribe its own limitation period for infringement. Courts have generally applied provincial limitation statutes to the extent they are constitutionally applicable, which in most provinces means a two-year basic limitation running from discovery.

Question 31Canadian trademark law: Trademarks Act and Regulations

A trademark owner licenses its registered mark to a manufacturer. Which statement best describes the effect of the licence on the registration under the Trademarks Act?

  1. The licence does not need to be recorded, and use by the licensee is deemed to be use by the owner if the owner controls the character or quality of the goods Correct answer.
  2. The licence is void unless approved by the Registrar before the goods are sold
  3. The licence automatically transfers ownership of the mark to the licensee
  4. The licence must be recorded or the registration may be expunged for non-use, because only recorded users count as use by the owner

Explanation

Section 50 provides that use of a mark by a licensee is deemed to be use by the owner, provided the owner directly or indirectly controls the character or quality of the goods or services. Recording the licence is permitted but not a condition of that deemed use.

Question 32Canadian trademark law: Trademarks Act and Regulations

An applicant wants to register a certification mark to indicate that goods meet a defined standard. Which requirement is specific to certification marks under the Trademarks Act?

  1. The applicant must provide a description of the defined standard the mark certifies Correct answer.
  2. The applicant must license the mark to at least one other person before filing
  3. The applicant must already own a registered ordinary trademark
  4. The applicant must be the person who actually manufactures the goods

Explanation

Section 23 permits certification marks and requires the applicant to describe the defined standard that the mark is intended to certify. The owner of a certification mark generally cannot use it on goods it deals in, because the mark must distinguish goods meeting the standard from others.

Question 33Canadian trademark law: Trademarks Act and Regulations

An applicant files a trademark application and the Examiner raises a confusion objection citing a prior registration. Which step is available to the applicant at the examination stage?

  1. File a statement of opposition against the cited registration
  2. Request that the cited registration be expunged by the Registrar immediately
  3. Appeal directly to the Federal Court without a decision from the Registrar
  4. Submit arguments and evidence to overcome the objection or amend the application Correct answer.

Explanation

During examination the applicant may respond to the Examiner's report with arguments, evidence of use or registration, or amendments to the goods and services or the mark. The application proceeds only if the objection is overcome or the applicant appeals a final decision.

Question 34Canadian trademark law: Trademarks Act and Regulations

A party wants to challenge a trademark registration on the ground that the registered owner was not the person entitled to register it. Which body has jurisdiction to decide that challenge in the first instance?

  1. The Competition Tribunal
  2. The Registrar, through a section 45 summary proceeding
  3. The Provincial Court of the province where the owner resides
  4. The Federal Court, in an action or application for expungement Correct answer.

Explanation

Section 57 gives the Federal Court jurisdiction to strike out or amend an entry in the register, including on grounds that the registration is invalid. The Registrar's section 45 process is limited to reviewing use and is not the forum for determining entitlement.

Question 35Canadian trademark law: Trademarks Act and Regulations

An applicant files an application for a mark that consists of a distinguishing guise. Which statement reflects the statutory test for registrability?

  1. The guise must be distinctive and must not unduly restrict the development of art or industry Correct answer.
  2. The guise is automatically registrable if the applicant has used it for one year
  3. The guise is registrable if it is new and useful in the patent sense
  4. The guise is registrable only if it is a two-dimensional design

Explanation

Section 13 permits registration of a distinguishing guise only if it is distinctive and, if it is a shaping of goods or their containers, does not unduly limit the development of any art or industry. The second branch reflects the concern that functional shapes should remain available to competitors.

Question 36Canadian trademark law: Trademarks Act and Regulations

A trademark owner believes a competitor's use of a similar mark is likely to depreciate the value of the goodwill attached to its registered mark. Which element is most central to a claim under section 22 of the Trademarks Act?

  1. The competitor's goods must be identical to the owner's goods
  2. The competitor's use must be confusing within the meaning of section 6
  3. The competitor must have applied to register its own mark
  4. The competitor's use must be likely to diminish the value of the goodwill in the registered mark Correct answer.

Explanation

Section 22 protects registered marks against use that is likely to have a depreciating effect on goodwill, even where the use is not confusing. The claimant must show use of the mark or a similar mark in connection with goods or services and a likelihood of depreciation.

Question 37Canadian trademark law: Trademarks Act and Regulations

An applicant's mark includes the name of a living individual. What does the Trademarks Act require before the mark can be registered?

  1. Registration of the name as a separate trademark first
  2. Proof that the individual is a public figure
  3. Written consent from the individual, unless the name is that of the applicant Correct answer.
  4. A statutory declaration that the name is fictitious

Explanation

Section 9(1)(k) prohibits the adoption of any matter that may falsely suggest a connection with a living individual, and section 9(2) allows registration if the individual consents in writing. Consent is therefore the key requirement where a living person's name appears in the mark.

Question 38Canadian trademark law: Trademarks Act and Regulations

A trademark has been registered for more than three years. A third party requests that the Registrar issue a notice under section 45. Which statement best describes the owner's burden?

  1. The owner must prove use only for one good or service in the registration
  2. The owner bears no burden because the registration is presumed valid
  3. The owner must prove use continuously since the date of registration
  4. The owner must prove use of the mark in Canada during the relevant period for each registered good or service, or show special circumstances excusing non-use Correct answer.

Explanation

In a section 45 proceeding the registered owner must furnish evidence of use of the mark in Canada during the relevant three-year period for each of the goods or services specified, or show special circumstances that excuse the absence of use. Failure to do so can result in amendment or expungement of the registration.

Question 39Canadian trademark law: Trademarks Act and Regulations

An applicant applies to register a mark on the basis of proposed use. Before registration, the applicant assigns the application to a purchaser. Which statement reflects the treatment of the assignment under the Trademarks Act?

  1. The assignment is void because proposed-use applications cannot be assigned
  2. The assignment requires the Registrar's prior approval before it takes effect
  3. The assignment is effective, and the purchaser may complete the application and rely on use by the purchaser or its predecessor in title Correct answer.
  4. The assignment transfers only the goodwill, not the application

Explanation

Section 48 permits assignment of a trademark, whether registered or not, and of an application, with or without the goodwill of the business. A proposed-use application may be assigned, and the successor can rely on use by the predecessor in title to support the application.

Question 40Canadian trademark law: Trademarks Act and Regulations

A trademark owner wants to rely on its Canadian registration in a dispute before a provincial court. Which statement best describes the evidentiary effect of the registration certificate?

  1. The certificate has no evidentiary value outside the Federal Court
  2. The certificate proves use but not ownership of the mark
  3. The certificate is conclusive proof of the facts stated in it, subject to any challenge to validity Correct answer.
  4. The certificate is admissible only if certified by the Federal Court

Explanation

Section 54 provides that a copy of the registration certified by the Registrar is evidence of the facts stated in it. The registration is presumptively valid, although the presumption can be rebutted by a successful challenge to validity.

Question 41Trademark registrability and entitlement

Under the Trademarks Act, which date determines whether a trademark is registrable on the basis of prior use in Canada?

  1. The date the registration certificate issues
  2. The date the trademark is advertised in the Trade-marks Journal
  3. The date the application is filed in Canada Correct answer.
  4. The date the examiner issues the first report

Explanation

Registrability and entitlement are assessed as of the filing date of the application, so prior use must be established before that date to support a registrability claim. Later events such as examination, advertisement, or issuance do not shift the relevant date backward.

Question 42Trademark registrability and entitlement

An applicant seeks registration of a word mark that is the surname of a living individual. Which statement best reflects the registrability analysis under the Trademarks Act?

  1. A surname is registrable if it has acquired distinctiveness or is not primarily merely a surname Correct answer.
  2. A surname is registrable only with the living person's written consent
  3. A surname is registrable only if it is also a coined word
  4. Surnames are absolutely barred from registration

Explanation

Section 12(1)(a) bars marks that are primarily merely the name or surname of a living individual or one who died in the preceding 30 years. The bar can be overcome where the mark has acquired distinctiveness or where it is not primarily merely a surname in the relevant market.

Question 43Trademark registrability and entitlement

Which of the following is the statutory basis for refusing a trademark that is clearly descriptive of the character or quality of the associated goods or services?

  1. Section 20(1)
  2. Section 12(1)(b) Correct answer.
  3. Section 16(1)(a)
  4. Section 9(1)(n)

Explanation

Section 12(1)(b) prohibits registration of marks that are either clearly descriptive or deceptively misdescriptive of the character or quality of the goods or services. Section 9(1)(n) concerns prohibited marks, section 16 concerns entitlement, and section 20 concerns rights conferred by registration.

Question 44Trademark registrability and entitlement

A mark consists of the words 'FRESH BAKED' for bread. The applicant has used the mark for eight years and can show substantial sales and advertising. What is the strongest argument for registrability?

  1. The mark has acquired distinctiveness under section 12(2) Correct answer.
  2. The mark is inherently distinctive because it is a word mark
  3. The mark is not descriptive because it is in English only
  4. The mark is a certification mark

Explanation

Where a mark is clearly descriptive under section 12(1)(b), section 12(2) permits registration if the mark has acquired distinctiveness at the filing date. Evidence of long use, sales, and advertising supports that showing.

Question 45Trademark registrability and entitlement

Which of the following would most likely be considered a prohibited mark under section 9(1)(a) of the Trademarks Act?

  1. The national flag of a foreign state Correct answer.
  2. A coined word with no meaning
  3. A colour per se
  4. A surname of the applicant

Explanation

Section 9(1)(a) prohibits the adoption of any mark consisting of the flag or coat of arms of a country. Coined words, surnames, and colours per se are analysed under other provisions.

Question 46Trademark registrability and entitlement

An applicant files an application based on proposed use in Canada. Which statement about entitlement is correct?

  1. The applicant must have registered the mark in another country first
  2. The applicant must intend to use the mark in Canada and file a declaration of use before registration Correct answer.
  3. The applicant must show use in commerce in at least two countries
  4. The applicant must have used the mark in Canada before filing

Explanation

A proposed-use application requires a bona fide intention to use the mark in Canada and a declaration of use confirming use before registration issues. Prior actual use is not required at filing.

Question 47Trademark registrability and entitlement

Two parties claim entitlement to the same trademark. Which factor is most relevant under section 16 of the Trademarks Act?

  1. Which party's goods are more expensive
  2. Which party first used or made the mark known in Canada, or first filed Correct answer.
  3. Which party's mark is more stylized
  4. Which party has the larger advertising budget

Explanation

Section 16 establishes entitlement based on prior use or making known in Canada, or the earliest filing date for proposed use. Advertising budget, stylization, and price are not the statutory criteria.

Question 48Trademark registrability and entitlement

A trademark application is filed by a person who is not entitled to the mark because another party used it earlier in Canada. What is the likely outcome?

  1. The application will be converted to a certification mark
  2. The application will be suspended indefinitely
  3. The application will proceed because the applicant filed first
  4. The application will be refused under section 16 Correct answer.

Explanation

Section 16 allows an opponent or examiner to challenge entitlement where another party has prior use. Filing first does not cure a lack of entitlement where prior use is established.

Question 49Trademark registrability and entitlement

Which of the following marks would be considered deceptively misdescriptive under section 12(1)(b)?

  1. 'SILK' for a fabric made of silk
  2. 'GOLD' for a jewellery store named Gold
  3. 'PURE' for bottled water
  4. 'SILK' for a fabric made of polyester Correct answer.

Explanation

Deceptively misdescriptive marks falsely suggest a character or quality of the goods. Using 'SILK' for polyester falsely suggests the fabric is silk. Using 'SILK' for actual silk is descriptive but not deceptive.

Question 50Trademark registrability and entitlement

What is the significance of the 'date of first use' in a Canadian trademark application based on use?

  1. It determines the registration fee
  2. It identifies the examiner assigned to the file
  3. It establishes the priority date for entitlement purposes Correct answer.
  4. It sets the expiry date of the registration

Explanation

The date of first use is relevant to establishing entitlement priority under section 16. It is not used to calculate fees, expiry, or examiner assignment.