Scassa, Teresa --- "The Challenge of Trademark Law in Canada’s Federal and Bijural System" [2008] ELECD 362; in Gendreau, Ysolde (ed), "An Emerging Intellectual Property Paradigm" (Edward Elgar Publishing, 2008)

Book Title: An Emerging Intellectual Property Paradigm

Editor(s): Gendreau, Ysolde

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847205971

Section: Chapter 1

Section Title: The Challenge of Trademark Law in Canada’s Federal and Bijural System

Author(s): Scassa, Teresa

Number of pages: 19

Extract:

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 ...