Two often-confused pillars of Canadian intellectual property law. Here is a comprehensive guide to what each protects, how registration works, what it costs, how to enforce your rights, and the mistakes Ontario businesses make most often.
By Jonathan Kleiman, Barrister & Solicitor · Updated June 2026
Intellectual property is often the most valuable asset an Ontario business owns — yet it is also the most commonly neglected. Business owners invest heavily in building their brand, creating original content, developing proprietary software, and designing unique products, but many never take the basic legal steps needed to protect those investments. When a competitor copies their brand name, when a former employee takes proprietary material to a rival, or when their creative work appears on someone else's website without permission, they discover that the protections they assumed they had were never actually in place.
This guide covers the two forms of intellectual property that affect Ontario businesses most frequently: trademarks and copyright. These are distinct legal regimes with different rules, different registration processes, and different enforcement mechanisms — but they are constantly confused with each other, and understanding the difference is essential for any business owner who wants to protect what they have built.
A note on jurisdiction: intellectual property law in Canada is exclusively federal. The Trademarks Act and the Copyright Act are both federal statutes, and registration for both is handled by the Canadian Intellectual Property Office (CIPO) in Gatineau, Quebec. Ontario does not have its own trademark or copyright regime. However, enforcement — the lawsuits that arise when someone infringes your rights — can proceed in either the Federal Court of Canada or in Ontario's Superior Court of Justice, depending on the nature of the claim. Ontario businesses are subject to the same IP laws as businesses in any other province.
A trademark is any sign — or combination of signs — that distinguishes the goods or services of one business from those of another. It tells customers who made the product or who is providing the service. When a customer sees the golden arches, they know the restaurant is a McDonald's. When they see the swoosh on a pair of shoes, they know the manufacturer is Nike. Those are trademarks — brand identifiers that function as a guarantee of source.
In Canada, the Trademarks Act (R.S.C., 1985, c. T-13, as amended) governs trademark law. The Act was substantially modernized in 2019, bringing Canada into alignment with several international treaties including the Madrid Protocol (which allows international trademark registration through a single application), the Nice Agreement (which standardizes the classification of goods and services), and the Singapore Treaty (which harmonizes trademark procedural requirements).
The 2019 amendments significantly expanded what can be trademarked in Canada. Registrable trademarks now include:
Not everything qualifies for trademark protection. The Trademarks Act and CIPO examination practice prohibit registration of:
An important distinction in Canadian trademark law is between common law (unregistered) rights and registered rights. You do not need to register a trademark to have some legal protection — the mere act of using a distinctive mark in commerce creates common law rights. But the two levels of protection are dramatically different in practice.
Common law trademark rights:
Registered trademark rights:
For any brand that you are investing in for the long term — your business name, your primary product or service name, your logo — registration is almost always worth the cost. The protection is broader, stronger, and easier to enforce.
Registering a trademark in Canada involves several steps and typically takes two to three years from application to registration (though timelines can vary significantly depending on CIPO processing times and whether any objections are raised):
Step 1: Trademark search. Before filing, conduct a comprehensive search to ensure your proposed mark is not already registered or applied for by someone else, and is not confusingly similar to any existing marks. CIPO's trademark database is publicly searchable, but a proper search goes beyond the database — it should also check common law uses, business name registrations, domain names, and industry directories. A trademark agent or lawyer typically conducts this search and provides an opinion on registrability and risk of confusion. The search is not legally required, but skipping it is unwise — if you file and the mark is refused due to a conflicting registration, you lose the filing fee and the months of processing time.
Step 2: Application filing. The application is filed with CIPO and must include: a representation of the mark (the word, logo, or other sign); a statement of the goods and/or services the mark will be used with (classified according to the Nice Classification system); the applicant's name and address; and the filing fee ($458 for the first class of goods/services, plus $139 for each additional class, as of 2026). Unlike the pre-2019 regime, you do not need to declare that you have already used the mark in Canada — you can file based on proposed use.
Step 3: Examination. A CIPO examiner reviews the application for compliance with the Act. The examiner checks whether the mark is inherently registrable (not generic, not clearly descriptive, not a prohibited mark) and whether it conflicts with any existing registrations or pending applications. If the examiner identifies problems, they issue an "examiner's report" and the applicant has a set period (typically six months) to respond. This back-and-forth can take multiple rounds.
Step 4: Publication (advertisement). Once the application passes examination, it is published in the Trademarks Journal. Third parties have two months from publication to file a statement of opposition — essentially a formal challenge to the registration. Oppositions are adversarial proceedings before the Trademarks Opposition Board and can take one to three years to resolve. Most applications are not opposed.
Step 5: Registration. If no opposition is filed (or if the applicant succeeds in an opposition), CIPO issues a certificate of registration. The mark is now registered for 10 years. Renewal fees are due every 10 years ($555 for the first class, plus $139 for each additional class).
Cost summary: For a single-class trademark application handled by a lawyer or trademark agent, expect to pay approximately $1,500 to $3,500 in combined government fees and legal/agent fees. Multi-class applications cost more. International registrations through the Madrid Protocol have additional fees (set by the World Intellectual Property Organization and the designated countries).
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Registration is not a one-time event. To maintain your trademark rights, you must:
Copyright is the exclusive legal right to reproduce, publish, perform, or adapt an original creative work. It protects the expression of ideas — not the ideas themselves. If you write a book about starting a business in Ontario, copyright protects the specific words you wrote, the structure of your chapters, and the creative choices you made in expressing your ideas. It does not protect the underlying factual information or the general concept of writing about Ontario business law.
Copyright law in Canada is governed by the Copyright Act (R.S.C., 1985, c. C-42, as amended). Like trademark law, it is exclusively federal — there is no separate Ontario copyright regime.
Copyright protects "original works" that are fixed in some material form. The categories of protectable works include:
In addition to these traditional "works," copyright also protects related subject matter:
Understanding the limits of copyright is as important as understanding what it covers:
Unlike trademarks, copyright in Canada is automatic. The moment you create an original work and fix it in some material form (write it down, record it, save it to a computer file), you own the copyright in it. No registration, no filing, no government approval, no © symbol — none of these are required for copyright to exist. Canada is a signatory to the Berne Convention, which mandates automatic copyright protection without formalities in all member countries.
However, there is an important threshold requirement: originality. The work must be independently created (not copied) and must involve a minimum degree of skill and judgment in its creation. The Supreme Court of Canada established this standard in CCH Canadian Ltd. v. Law Society of Upper Canada (2004 SCC 13), holding that originality requires more than mere "sweat of the brow" (simple labour and effort) but less than creativity or novelty. The work must be the product of the author's exercise of skill and judgment that is not so trivial as to be purely mechanical.
The general rule is that the author — the person who created the work — is the first owner of copyright. But there are important exceptions:
For Ontario businesses, the practical implication is clear: every contractor agreement should include a clause assigning all intellectual property rights in the work product to your business. Without that clause, you may be paying for work you do not legally own.
Although copyright is automatic, registration provides meaningful legal benefits:
The registration process is straightforward: file an application with CIPO, pay the fee ($50 for online filing, $65 for paper filing), and CIPO issues a certificate. There is no examination of the work itself — CIPO does not check whether the work is truly original or whether you are actually the author. Registration is essentially a claim of ownership, not a verified confirmation of it. The true test comes if the registration is ever challenged in court.
Given the modest cost ($50 per work), registration is advisable for any creative work that has commercial value — your website content, your software code, your marketing materials, your training manuals, your product designs, your photographs. The $50 investment provides evidentiary benefits that would cost thousands of dollars to replicate through other means in litigation.
In December 2022, Canada extended its general copyright term from "life of the author plus 50 years" to "life of the author plus 70 years", bringing Canada into alignment with the United States, the European Union, and most other major trading partners. This change was required under the Canada-United States-Mexico Agreement (CUSMA).
The specific term depends on the type of work:
Once copyright expires, the work enters the public domain and anyone can use it freely.
A unique feature of Canadian copyright law (inherited from the civil law tradition) is moral rights. These are rights that belong to the author personally and cannot be transferred — only waived. They include:
Moral rights last for the same duration as copyright. Even if you assign all copyright in a work to someone else, you retain your moral rights unless you explicitly waive them in writing. For businesses that commission creative work, this means: always include a moral rights waiver in your contractor agreements. Without it, the creator could theoretically object to how you use, modify, or present the work — even though you own the copyright.
Trademarks and copyright protect different things, but they can overlap. The most common example is a logo. A logo is an artistic work (attracting copyright protection for the visual design) and a trademark (attracting trademark protection for its use as a brand identifier). A slogan might be too short for copyright but can be registered as a trademark. A product package design might have both copyright elements (the artwork) and trademark elements (the brand name and distinctive trade dress).
The protections are cumulative — having both is better than having one. Copyright prevents copying of the design; trademark prevents confusing use of a similar design in commerce. Copyright expires eventually; a trademark registration can be maintained indefinitely. A comprehensive IP strategy uses both regimes where they are available.
Trademark infringement occurs when someone uses a mark that is confusingly similar to your registered trademark in connection with goods or services. You do not need to prove intention — even innocent infringement is actionable. The test is whether a "somewhat hurried" consumer would be confused as to the source of the goods or services.
Available remedies for trademark infringement include:
Trademark infringement cases can be brought in the Federal Court of Canada (which has exclusive jurisdiction over certain trademark matters) or in provincial superior courts (which have concurrent jurisdiction over many trademark disputes, particularly those involving passing off).
Copyright infringement occurs when someone, without authorization, does anything that only the copyright owner has the right to do — reproducing the work, publishing it, performing it in public, translating it, adapting it, or making it available online. Infringement does not require proof of intent — even innocent copying is infringement (though intent may affect the remedy).
Available remedies for copyright infringement include:
Most IP enforcement begins not with a lawsuit but with a cease-and-desist letter. This is a formal letter from the rights holder (or their lawyer) to the alleged infringer, identifying the IP rights being infringed, describing the infringing conduct, demanding that the infringement stop, and setting a deadline for compliance. Many infringement situations resolve at this stage — the infringer may not have realized they were infringing, and a well-drafted cease-and-desist letter prompts them to stop voluntarily rather than face litigation.
A cease-and-desist letter should be firm, specific, and professional. It should identify the exact rights being asserted (registration numbers, dates of first use, specific works), describe the infringing conduct with specificity, state the legal basis for the claim, and demand specific relief (stop using the mark, take down the content, destroy infringing materials) by a specific date. It should not make threats that you are not prepared to follow through on — empty threats undermine credibility and can, in some circumstances, give rise to a counterclaim for unjustified threats.
Canada has a statutory "notice and notice" regime for online copyright infringement (sections 41.25-41.27 of the Copyright Act). If you discover your copyrighted material being hosted on a Canadian internet service provider's platform, you can send a notice to the ISP, and the ISP is required by law to forward that notice to the alleged infringer. This is different from the American "notice and takedown" system (DMCA) — in Canada, the ISP is only required to forward the notice, not to remove the content. Removal requires a court order or voluntary compliance by the infringer.
For content hosted on foreign platforms (YouTube, Facebook, Instagram, Amazon, etc.), the platform's own takedown procedures apply — typically modelled on the DMCA's notice and takedown framework. Filing a DMCA takedown notice with these platforms is often the fastest practical remedy for online copyright infringement.
Registering a business name with the Ontario Business Registry (or incorporating under a particular name) does not give you trademark rights. Business name registration and trademark registration are completely separate systems serving completely different purposes. Business name registration is a provincial corporate/commercial requirement; trademark registration is a federal intellectual property right. Many Ontario businesses operate for years under the assumption that their corporate name registration gives them exclusive rights to the name — it does not. Another business in another province (or even in Ontario) could register the same name as a trademark and potentially force you to rebrand.
Building a brand around a name without first checking whether that name is already trademarked by someone else is a common and expensive mistake. You invest in signage, marketing materials, a website, social media presence, customer recognition — and then receive a cease-and-desist letter from a prior trademark owner requiring you to stop using the name. At that point, you either rebrand (losing all the goodwill you built) or defend a trademark infringement claim (expensive and often unsuccessful if the prior registration is valid).
As discussed above, work created by independent contractors is owned by the contractor unless the contract says otherwise. Every year, Ontario businesses discover that they do not own their own website, their own marketing content, or their own software because they hired a contractor without an IP assignment clause. The fix is simple — include the clause in every contractor agreement. The problem is that many businesses only learn about this rule after they have a dispute with a former contractor who claims to own the work.
Using images from Google Image Search on your website, playing music in your store without a SOCAN license, or incorporating open-source software without complying with its license terms are all forms of copyright infringement that Ontario businesses commit routinely — often without realizing it. Just because content is available online does not mean it is free to use. Always verify licensing terms before using anyone else's creative work.
If you own a successful trademark and allow the public to use it as a generic term for the category of product — rather than as a brand identifier — you risk losing the trademark entirely. This is rare, but it happens: "aspirin," "escalator," "thermos," and "trampoline" were all once registered trademarks that lost protection through genericide. Protect your mark by always using it as an adjective (a brand modifier), not a noun or verb, and by policing unauthorized uses.
A Canadian trademark registration protects your mark in Canada only. If you sell goods or services internationally — including online sales to customers in other countries — you need protection in those countries too. The Madrid Protocol makes international registration more efficient (a single application designating multiple countries), but it still requires filing and fees in each designated country. Similarly, copyright registration in Canada does not create rights in other countries — though under international treaties (the Berne Convention), your Canadian copyright is generally recognized in other member countries without formality.
An intellectual property strategy does not need to be complex or expensive. For most Ontario small businesses, the essential steps are:
The cost of this basic IP infrastructure is modest — a trademark registration ($1,500-$3,500), copyright registrations ($50 per work), and properly drafted contract clauses (included in your standard employment and contractor templates). The cost of not having it — rebranding, losing ownership of your own content, litigating IP disputes — is orders of magnitude higher.
Register your important marks. Document the creation of your important works. The IP infrastructure of a small business is inexpensive — until you need it, at which point it is priceless.
A trademark protects brand identifiers — names, logos, slogans — that distinguish one business's goods or services from another's. A copyright protects original creative works — writing, music, art, software, photographs. They serve different purposes but can overlap (a logo may have both trademark and copyright protection).
The CIPO filing fee is $458 for the first class of goods or services, plus $139 for each additional class. Combined with legal fees for the search and application, expect approximately $1,500 to $3,500 for a single-class application. Registration lasts 10 years and is renewable.
No — copyright is automatic upon creation of an original work. However, registration ($50 online) provides a presumption of ownership in litigation and access to statutory damages. For commercially valuable works, registration is strongly recommended.
Typically two to three years from application to registration, including CIPO examination (often 24-36 months due to backlogs) and a two-month opposition period after publication.
Life of the author plus 70 years (extended from 50 to 70 years in December 2022). For works with corporate authorship, 75 years from publication.
The contractor owns it by default. Unlike employees (whose work product belongs to the employer under the Copyright Act), independent contractors retain copyright unless the contract explicitly assigns it. Always include an IP assignment clause in contractor agreements. For more on contractor relationships and business formation, see How to Start a Small Business in Ontario.
Feel free to contact Jonathan Kleiman, a business lawyer based in Toronto, Ontario.
Trademark search, registration, copyright protection — get the IP layer right while it's still cheap.