Canada trademark Law

I found it interesting that Dataface Inc from Houston, TX decided to file a trademark for DATAFACE in Canada. I have been using the trade name Dataface since March 2005, in Canada. Their trademark application found
declares that they have used it in Canada since at least Nov. 5, 2007. That is over 2 years after the first use for my open source app.

According to the Canada trademark application instructions I can file a statement of opposition with the opposition office. However it costs $750 to file the claim and I haven’t been able to find a good example of what such a claim looks like. It doesn’t appear as though there is a standard form for this.

In doing some research on the validity of my claim to the trademark, I came across the Effigi Inc v Canada case in which it was declared that the date of first use was not relevant and that the dates of filing were the key decider as to who had rights to the trademark. This would indicate that in Canada it is essentially a first come first served system. Read more about this here.

Lessons Learned

  1. Don’t delay in filing for trademarks for any names you use, as it will be more costly and more of a hassle later on if another party decides to trademark your phrase.

This is obviously frustrating for someone like me who just wants to develop good open source software, and naturally needs to give a name to his products. It is unreasonable to trademark every name that I use since most of my products are released free to the public and for public benefit. It is a catch 22 because I cannot afford to trademark every phrase used in my applications, and I cannot afford to change the names of my applications when some tax-collecting company decides to trademark my phrase.

I hope that the powers that be might some day recognize the unjust aspects of this system and correct it so that artists, like myself, are protected from corporate interests.

I have created and released dozens of open source applications and have coined over 50 phrases concerned with labeling certain programming patterns. It would cost me about $10,000 to trademark all of these names and phrases (if I didn’t enlist the help of a lawyer). This seems rather ridiculous since most of these applications are free and open source, and I derive no money from them. Hence I would be paying a tax of $10,000 purely for the ability to name my things without having to worry about being sued or forced to change the name at a later date (which is a huge hassle, once you have amassed a lot of material on the topic.

I plan to blog on this issue more specifically once I have looked more closely into the protections available to artists with respect to corporate rent collectors.

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