What Counts as Trademark Infringement in Canada: A Business Owner's Guide

Discovering that another business is using a name, logo, or slogan that looks a lot like yours is unsettling, but "similar" isn't automatically the same thing as "infringing." Canadian trademark law draws a specific legal line, and understanding roughly where it sits helps you figure out whether you're dealing with a real problem or just an uncomfortable coincidence.

This article walks through the core legal test for trademark infringement in Canada, common examples, and what remedies are actually available if your registered mark has genuinely been infringed.

The Basic Legal Test: Likelihood of Confusion

Registering a trademark under the Trademarks Act gives you the exclusive right to use that mark across Canada in connection with the goods or services it's registered for. Someone infringes that right, broadly speaking, when they use a mark that's confusingly similar to yours, in connection with related goods or services, in a way that's likely to make customers think there's a connection between the two businesses that doesn't actually exist.

The key word is confusion — not identical wording, not exact copying, but a real likelihood that an ordinary customer would be misled about the source of the goods or services. Courts weigh a range of factors in any specific case, including how similar the marks look and sound, how similar the goods or services are, and how well-known the original mark is. This is a fact-specific analysis, not a simple checklist.

Examples That Typically Cross the Line

• A competitor uses a name or logo close enough to yours, for closely related products, that customers could reasonably think they're buying from you or an affiliated business.
• A business adopts a near-identical name for a similar service in the same market, trading on the reputation you've built.
• Counterfeit goods are sold bearing your actual registered mark without authorization.
• A domain name, social media handle, or advertising campaign uses your mark, or something confusingly close to it, to attract customers searching for your business.

What Usually Doesn't Count as Infringement

• Using an unrelated word or mark that happens to be spelled or sound somewhat similar, for a completely different type of good or service, in a way that creates no realistic likelihood of confusion.
• Purely descriptive or generic use of a word that also happens to appear in your trademark — trademark rights generally don't stop others from using ordinary descriptive language about their own products.
• Genuine comparative references to a competitor's brand, within the bounds of fair, accurate commentary, though this area has its own nuances and isn't a blanket shield for any use of someone else's mark.

These distinctions are genuinely fact-specific — what looks obviously fine or obviously infringing to a business owner isn't always straightforward from a legal standpoint, which is exactly why a lawyer's assessment matters before you either back down or send a demand letter.

Depreciation of Goodwill: A Related but Different Claim

Canadian trademark law also recognizes a separate claim: using someone else's registered trademark in a way that depreciates the value of the goodwill attached to it, even in situations that might not meet the traditional confusion test. This can capture things like using a competitor's well-known mark in a way that disparages it or free-rides on its reputation, without necessarily confusing anyone about the source of the goods. It's a distinct legal theory from ordinary infringement, with its own requirements.

What Remedies Are Available

A trademark owner who successfully proves infringement can generally pursue:

• An injunction — a court order requiring the infringing party to stop using the mark.
• Damages or an accounting of profits — compensation for the harm caused, or requiring the infringer to hand over profits made from the infringing use.
• Delivery up or destruction of infringing goods, packaging, or materials.

Acting promptly matters. Ontario's Limitations Act, 2002 generally sets a basic two-year limitation period for most civil claims that runs from when the claim is discovered, not necessarily from when the infringement first began — figures like this can have exceptions depending on the claim, so confirm how it applies to your situation with a lawyer. As a general matter, the longer you wait to act after discovering a real problem, the harder it can become to fully address it, and you risk running out the clock on your ability to sue at all.

Frequently asked questions