A competitor launches with a name that looks a lot like yours. Or the reverse happens: a letter arrives accusing your business of infringing someone else's brand, demanding that you stop using your own name. Either way, the question is the same, and it is rarely as simple as it first appears. Trademark infringement in Canada is a real risk for growing businesses, but it is also widely misunderstood, partly because so much of the advice online describes US law rather than the Canadian rules.
This guide explains what trademark infringement means in Canada, how it is assessed, and what your options are on both sides of a dispute: as the owner of a brand someone may be copying, and as a business accused of infringing. It also flags where Clearview can help at each stage.
What is trademark infringement in Canada?
Trademark infringement in Canada is the unauthorized use of a trademark that is the same as, or confusingly similar to, a registered trademark, in a way the Trademarks Act does not permit. Registration of a trademark gives the owner the exclusive right to use that mark throughout Canada for the goods and services it covers, and that right is infringed when someone who is not entitled to use the mark does so in a confusing way.
The federal Trademarks Act sets out the core protections for registered marks. The exclusive right that comes with registration is described in section 19, and section 20 treats that right as infringed by a person, not entitled under the Act, who sells or advertises goods or services in association with a confusing trademark or trade name. A separate provision, section 22, prohibits using a registered trademark in a way likely to depreciate the value of the goodwill attached to it, which can apply even where ordinary confusion is harder to show.
Two points often surprise business owners. Infringement does not require an identical mark or identical products; it turns on confusion, which can exist between similar marks for related goods. And it does not require bad intent. A business that adopted a confusing name in good faith, without ever having heard of the earlier mark, can still infringe.
How is infringement assessed? It comes down to confusion
Most trademark infringement questions in Canada come down to whether the two marks are confusing. Section 6 of the Trademarks Act supplies the statutory test: whether the use of both marks in the same area would be likely to lead to the inference that the goods or services come from the same source, assessed in light of all the surrounding circumstances. Those circumstances include how distinctive the marks are, how long they have been used, the nature of the goods and the trade, and the degree of resemblance between them. The familiar formulation of the question comes from the courts rather than the statute: Canadian courts ask about the first impression a mark makes on a casual consumer who has only an imperfect recollection of the earlier mark.
No single factor decides the question, and two situations that look similar on paper can come out differently. Because the outcome is so fact-specific, it is a poor candidate for a quick self-assessment. Clearview's post on understanding trademark confusion in Canada works through the factors in detail, and the post on trademark basics in Canada covers the underlying concepts.
What if the mark is not registered? Passing off
A business can have enforceable trademark rights in Canada without a registration, but the route to protect them is different. Unregistered marks are protected mainly through passing off, which is available both under section 7(b) of the Trademarks Act and at common law. Passing off protects the reputation, or goodwill, a business has built up in a name or brand through use.
Passing off generally requires proving three things: that the business has established goodwill or reputation in the mark, that the other party made a misrepresentation likely to confuse the public, and that the business suffered or is likely to suffer damage as a result. That is usually harder and more expensive to establish than infringement of a registered mark, where the registration itself is evidence of the owner's exclusive rights. This gap is one of the most practical reasons to register a mark rather than rely on common-law rights alone, a point covered in Clearview's guide to how to register a trademark in Canada.
The table below summarizes how enforcement differs.
| Registered trademark | Unregistered trademark | |
|---|---|---|
| Main legal basis | Infringement and depreciation under the Trademarks Act | Passing off (Trademarks Act section 7(b) and common law) |
| Geographic scope | Exclusive rights throughout Canada | Limited to the area where reputation exists |
| What you must prove | Confusing use by someone not entitled | Goodwill, misrepresentation, and damage |
| Relative difficulty | Generally more straightforward | Generally harder and costlier |
What can a trademark owner do about infringement?
Where a business believes another party is infringing its trademark, enforcement generally starts with an assessment of the strength of its position: confirming the registration and the goods and services it covers, evaluating how likely confusion really is, and checking whether the other party might have earlier rights of its own. A demand sent from a weak position can invite a challenge to the registration rather than a quick resolution.
From there, the practical options usually escalate in this order:
- A clearance review of your rights and the alleged infringement, so any next step rests on solid ground.
- A cease and desist or demand letter setting out your rights and asking the other party to stop or change their use.
- Negotiation toward a resolution, which might be a rebrand by the other party, a wording or design change, or a coexistence agreement that lets both businesses operate within defined limits.
- Court proceedings, where the dispute cannot be resolved otherwise.
The Trademarks Act allows a court to grant remedies including an injunction to stop the infringing use, monetary relief through damages or an accounting of the infringer's profits, and the destruction or other disposition of infringing goods. One wrinkle applies to newly registered marks: where the owner applies for relief within the three years beginning on the registration date, the Act does not allow relief unless the trademark was in use in Canada during that period, or special circumstances excuse the absence of use. A trademark infringement action can be brought in the Federal Court, which has nationwide jurisdiction, or in a provincial superior court. Litigation is costly and its outcome is never guaranteed, which is why a demand letter and negotiation are common first moves.
Where the infringing use appears on a marketplace listing, the platform's own takedown channels can move faster than any of these steps. For brands selling on Amazon.ca, protecting your trademark on Amazon Canada covers Brand Registry, Project Zero, and the infringement-report process.
Clearview can assess your rights, send a cease and desist letter, and negotiate a resolution. Clearview's brand protection service covers the enforcement and monitoring side of trademark work.
What should you do if you are accused of infringement?
A cease and desist letter is a demand, not a court order, and not every accusation holds up. An immediate concession can give away ground that an assessment might have preserved, and leaving a legitimate claim unanswered can make a later court proceeding more expensive and harder to defend.
A measured response starts with assessment: Is the sender's mark actually registered, and for what goods and services? Is your use genuinely confusing, or merely in the same broad industry? Did you have your own prior rights in the name before the other party's? The answers shape your options, which may range from declining the demand with reasons, to negotiating a limited change, to rebranding if the claim is strong and the cost of fighting outweighs the cost of changing. Many letters resolve through a negotiated wording or design adjustment rather than litigation. Assessing the underlying claim before responding is what shows which of those options is realistically available.
When to fight and when to negotiate
There is no single answer to whether you should defend your position or settle, because trademark outcomes depend on the specific facts. The strength of each side's rights, the degree of overlap between the goods and channels, how much each business has invested in its brand, and the commercial cost of changing all factor in. A business with a strong registration and clear evidence of confusion has more room to insist on a change. A business relying on an unregistered mark with a thin reputation has narrower options, and negotiated compromises are common in that position.
What runs through both situations is the assessment: what each side's rights actually cover, and what a change of use would cost commercially. Threats sent from a weak position and concessions made to a weak demand each carry costs that an assessment can identify in advance. Registration and clearance matter here too, because a business that secured its rights early has defined rights to point to in a dispute.
Conclusion
Trademark infringement in Canada rewards preparation. Owners with registered, well-cleared marks have clearer rights and more options when a conflict arises, and a claim that is assessed before it is answered leaves more of those options open. Whichever side of a dispute you are on, early advice puts the rights involved on a factual footing before a demand is sent or answered.
If you are dealing with a possible infringement, or you have received a demand letter, contact Clearview to assess your rights and the practical options before you respond.