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By Me Frédéric Letendre, lawyer and co-founder at YULEX, lawyers and strategists
This article is a preview of a more comprehensive presentation we will give as part of MTL connect.
Since June 2019, it has been easier for businesses to protect, both in Canada and abroad, their digital projects or to use intellectual property to make a more complete digital shift: applications, software, video games, graphical interfaces, virtual or augmented reality, market places, social media, etc. Indeed, in addition to copyright, businesses benefit from protection better suited to the digital age in terms of trademarks (TM) and industrial designs.
3D Trademarks
For the record, a TM is an element (word, sound, image, etc.) that is associated with products and services to distinguish them from those of competitors (e.g., the word APPLE is associated with computer products). This association is exclusive to its owner; no one else can make the same « element-products/services » association.
Unlike what was done before 2019, in a time when everything was static 2D, it is now possible to protect, as a TM, an animated logo in both 2D and 3D. Although this is a detail, it is possible to provide the Canadian Intellectual Property Office with a file containing the animated logo and not just a sequence of images representing that logo. This makes it easier to understand what the TM owner wishes to protect.
As for hologram trademarks, they are more technical. They absolutely require the use of a laser. Thus, holographic-type images (e.g., Pepper’s ghost) that involve the use of mirrors instead of a laser will rather be TMs in the form of images or 3D animations. The same applies to images or 3D animations generated by LED light holographic fans. Beware, we are still far from the holographic chess game in Star Wars, but we are still discovering a world of possibilities.
International Protection
Canada has joined the Madrid Treaty, which allows, with a single application, the protection of a Canadian TM to be extended to nearly 125 countries, and this much more easily and at a lower cost. Until very recently, we had to proceed country by country.
Businesses from other countries that are signatories to the Treaty can also extend their protection more easily to Canada. Just as the Web brings businesses closer to their customers and competitors around the world, this type of treaty also facilitates access to new markets, including Canada. Competition is therefore even more global.
Prevention
Businesses should think sooner rather than later about the relevance of registering a TM, as it notably allows them to more easily repel any registration request from a national or international competitor. Indeed, the first person to file an application will generally have « the upper hand ».
Businesses also benefit from understanding the new protections available to them in order to better protect their digital products and services and to maintain or increase their economic value.
In terms of intellectual property, the best defense is therefore… prevention.
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