Canada’s 150th Birthday: Celebrating with Marks, Designs and Signs June 27, 2017 By Tamara Céline Winegust Happy Canada Day! Did you know that there are rules for using and displaying many Canadian symbols? An overview of some rules governing the use of such marks, designs, and signs is below. The 11-Point Maple Leaf The public is generally free to use the 11-pointed maple leaf (i.e. the one that appears on the Canadian Flag) in a design or trademark provided such use conforms to “good taste”. A general permission was set out in a 1965 order of the Privy Council (Order no. 1965-1623), passed in preparation for Canada’s 1967 centennial celebrations. While the leaf design may be incorporated into a trademark, no rights will be acquired in the maple leaf itself, and the mark owner cannot prevent third parties from using the maple leaf. Interestingly, the same Order in Council provided that for the period of 1965 to 1968, not only the maple leaf, but also the Canadian Flag, the Arms of Canada, and pictorial depictions of uniformed members of the Royal Canadian Mounted Police (known colloquially as “Mounties”), could be used on souvenirs and other commemorative items, as well as in commemorative displays, without permission from the Canadian government. This is not the case today. The Canadian Flag, Coat of Arms, and the Mounties Specific permission must be obtained from the government of Canada to reproduce or adapt the Flag or Arms, and from the RCMP for any images of Mounties, in connection with commercial or business activities, because these symbols are considered “prohibited marks” under section 9(1) of the Trade-marks Act, RSC 1985, c T-13. That section prohibits the adoption in connection with any business, as a trademark or otherwise, of the following, or anything resembling these protected indicia: The Royal Arms, Crest or Standard; The arms or crest of any member of the Royal Family; The Governor General’s standard, arms, or crest; The arms, crest, or flag adopted and used at any time by Canada or province or municipal corporation in Canada, where public notice has been given of such adoption and use; Any national flag—e.g. the Canadian Flag; The name “Royal Canadian Mounted Police” or “RCMP”; and Any pictorial representation of a uniformed RCMP member (i.e. a Mountie). Permission can be obtained from the entity whose indicia are protected by section 9(1) to overcome the general prohibition. With respect to the Canadian Flag, Canadians are free to display the Flag itself. Permission for commercial uses, however, Bereskin & Parr LLP | bereskinparr.com is properly sought from the Government of Canada. Requests for permission should be forwarded to the State Ceremonial and Canadian Symbols, Department of Canadian Heritage, and should include a sketch of the intended use. The Government usually responds within ten (10) days (though often faster), and permission is usually granted as long as there have been no changes to the flag design. Requests may be denied, however, where something is written on the Flag, the maple leaf is replaced with other matter (such as a marijuana leaf), or if the Flag is used in a way that leaves the impression that there is government endorsement. Where permission is denied, the Government will often suggest changes so permission can be granted. Requests in respect of the Canada Coat of Arms should be sent to the Federal Identity Program, Treasury Board of Canada Secretariat. The same department must be contacted in respect of the Government of Canada signature, and the wordmark CANADA. For pictorial representations of uniformed members of the Royal Canadian Mounted Police (aka “Mounties”) permission must similarly be sought from the RCMP. Commercial uses of the RCMP’s image and protected marks are administered by the RCMP Foundation. Different licenses are available for “commercial uses”—i.e. mass produced and marketed goods—and “homecrafters”—i.e. small businesses making hand-made products bearing an RCMP image or mark—although both require that the RCMP and RCMP Foundation approve the proposed use, that the licensee pay a 10% royalty on all branded products sold, and that royalty statements be submitted quarterly. Canada 150 and other milestone birthday celebrations Like the Canadian Flag, Coat of Arms, and Mounties, the symbols associated with Canada’s sesquicentennial celebrations, CANADA 150, are protected under section 9(1) of the Trade-marks Act as “Official Marks” adopted and used by the Government of Canada, for which public notice of such adoption and use has been given in the Trademarks Journal. Permission to use such symbols, as well as the CANADA 150 typeface, must be sought from the Minister of Canadian Heritage and Official Languages, through the Canada 150 Federal Secretariat, Department of Canadian Heritage, who will grant a license where the CANADA 150 marks are reproduced on goods for sale or distribution, or in association with a company’s corporate look, usually about 12 business days after the request is submitted. Concurrently with CANADA 150, the province of Ontario is running a commemorative ONTARIO 150 campaign. The logo is being used by Ontario government ministries, funded partners, and grant recipients. Non-funded not-for-profits and private organizations can apply by submitting an application form, describing the proposed use, including information identifying whether the use will be commercial, whether the logo will be used in advertising, whether the product or advertising will bear any other trademark or logo. There are also “visual identity guidelines” that must be followed. Similarly, the city of Montréal is commemorating its 375th birthday with a MONTREALIVE 375 campaign. While the MONTREALIVE 375 marks are not “Official Marks”, those who wish to use the branding without government permission must do so in accordance with the graphics guidelines, and cannot use the branding in combination with other trade names or brands, or for any commercial purposes. Other Canadian Symbols Many other traditional Canadian symbols are in the public domain, for example, general depictions of beavers, moose, and Bereskin & Parr LLP | bereskinparr.com loons. Third party rights, however, should be considered before adopting such symbols. For example the designs on the “tails” side of standard Canadian coins, including the design of a beaver, caribou, and the Bluenose sail boat, are “Official Marks” of the Royal Canadian Mint, and permission must be sought from that government agency before making use of any such designs. Care must also be taken as to whether use of any such Canadian symbols will create the general impression that the associated goods or services originate in Canada if they do not, or are being sold, produced, or performed under government patronage, approval, or authority. There are strict compositional rules for making direct or implied “Made in Canada” and “Product of Canada” claims. The government agency regulating advertising has stated that some Canadian symbols, such as the maple leaf or the Canadian Flag, can be as powerful as making implied claims, as express ones. For more information on the use of Canadian symbols, contact Cynthia Rowden or Tamara Céline Winegust. Content shared on Bereskin & Parr’s website is for information purposes only. It should not be taken as legal or professional advice. To obtain such advice, please contact a Bereskin & Parr LLP professional. We will be pleased to help you. Bereskin & Parr LLP | bereskinparr.com.