April 21st, 2021

How to Protect your Billion-Dollar Idea: An Overview of Copyrights, Patents and Trademarks
Written by Skylar Caldwell
 
So you've finally thought of the next billion-dollar startup idea. Before you book the next available spot on Dragon's Den or let the Facebook, Amazon, and Apple shaped-stars in your eyes cloud your vision, you may be wondering what steps you can take to protect the information that is valuable to your future-unicorn company. Canadian legislation provides several options to protect intellectual property and other information that is valuable to a business. This blog post provides an overview of three of the most common ways businesses protect their information; copyright, patent, and trademark.
 
Copyright: For Creative Works
A copyright is the right a person holds in a creative work. Do you intend on building a literary empire à la Stephen King? If yes, copyright is for you. Copyright provides protection for literary, artistic, dramatic, musical works, computer programs, and other subject matter known as performer's performances, sound recordings, and communication signals.[1] In general, copyright means the sole right to produce or reproduce a work or substantial part of a work in any form. In order to successfully apply for a copyright, a work must be original, creative, and recorded in some way. Creative, in the context of copyright, does not exclusively refer to artistic works. It simply means that the copyrighted work must be the product of knowledge and judgement.
 
Haven't been able to find a publisher willing to take on your literary masterpiece? Don't sweat it- unlike trademark protection, copyright protection under the Copyright Act applies to works that have not been published or otherwise made known. In fact, copyright includes the right to publish a work or a substantial part of a work.
 
Registering a copyright is not necessary. However, copyright gives the creator the presumption of ownership in any legal disputes that may arise surrounding the copyrighted material, as well as precludes a person who infringes on the copyright from claiming innocence.[2] It should be noted that not every incidence of copying copyrighted material is considered to be a violation. For example, section 6 of the Copyright Act specifies that exceptions are made in instances of copying for the purpose of "research, private study, education, parody or satire".[3] Additionally, the copyright must be monitored by the copyright holder.[4] This means that the onus is on the holder of the copyright to recognize any infringements on their copyright and bring forth an action against the individual infringing on the copyright. A copyright is typically valid for the entire creator's life, and extends to 50 years beyond the year of the creator's death.[5] Copyrights can be registered through the Canadian Intellectual Property Office (the "CIPO"). The process involves filling out an online form and paying a $50 fee.
 
Patents: For Inventions
Patents exist for the protection of inventions. Does your future-unicorn startup involve the invention of a product to protect dog's ears to solve the incessant problem of not being able to bring your pup along to concerts? I have bad news, Animal Ear Protectors have already been patented. If you have another invention, defined under the Patent Act as "any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter"[6], a patent may be the right option for protecting your business.
 
Patentable inventions must be new, useful and not obvious to an individual working in the relevant field or industry. Unlike copyright, there is no automatic protection for creators of the patented material. In order to legally protect your invention, a patent must be granted. Patent protections are typically stronger than copyright protections, as they give the holder the right to exclude others from making, using or selling the invention, even in instances where another person developed the patented invention independently. Patents last for 20 years, and cannot be renewed.[7]
 
The first step in obtaining a patent is to file an application. The patent application fee is $204 for small entities and $408 for other businesses.[8] Once the application has been filed, the applicant must request an examination, which can take up to two years to occur. During the examination stage, an application may be granted, or the examiner may object to all or part of the application. In instances where there is an objection, the applicant must respond to the objection or else the application will be considered abandoned. If the applicant responds to an objection, there may be additional objections made by the examiner or the application may be denied in whole. If an application is rejected, the applicant can appeal the decision to the Commissioner of Patents. If an application is granted, the owner of the patent must pay maintenance fees every year to maintain the patent. The maintenance fee for the second, third, and fourth years following the filing date of the patent is $50 for small entities and $100 for other businesses.[9] The maintenance fees increase the longer you hold the patent for. On the fifth, sixth, seventh, eighth and ninth years following the filing date of the patent, the maintenance fee is $100 for small entities and $204 for other businesses.[10]
 
Trademarks: For Business Names, Slogans and Logos
The word "Tesla" is inextricably associated with innovation and the quirky, visionary leadership of its founder Elon Musk. If you foresee your billion-dollar startup obtaining a similar type of powerful brand recognition, you should consider filing a federally registered trademark under the Trademarks Act.[11] Trademarks can be any "combination of words, sounds, or designs used to distinguish the goods or services of one person or organization from those of others".[12] Trademarks can include business names, logos, and slogans, and can be important components of ensuring continuity in brand recognition. After all, where would Nike be without its association with the intensely inspirational and instantly recognizable "Just Do It" slogan?
 
When registering a trademark, a person is granted "the sole right to use the mark across Canada for 10 years".[13] The holder of a trademark is also provided the option to renew the trademark every ten years. A trademark is not required to be registered. This is because, if the use of a trademark has persisted for a certain length of time, the trademark may be protected under common law. [14]
 
The two most common types of trademarks in Canada are ordinary trademarks and certification marks.[15] An ordinary trademark includes words, designs, tastes, textures, moving images, modes of packaging, holograms, sounds, scents, three-dimensional shapes, colours, or a combination of these used to distinguish foods or services of one person or organization from those of others.[16]
 
A certification mark can be licensed to many people or companies for the purpose of showing that certain goods or services meet a defined standard with respect to: (a) the character or quality of the goods or services; (b) the conditions under which the goods have been produced or the services performed; (c) the class of persons by whom the goods have been produced or the services performed; or (d) the area within which the goods have been produced or other services performed.[17] Certification marks are trademarks that serve as a guarantee that the goods or services with which the mark is associated conform to a particular standard. The owner of a certification mark is responsible for establishing the defined standard indicated by the mark. The owner may adopt the mark and register it with the Canadian Trademarks Office so long as it does not itself manufacture, sell, lease or hire the goods, or perform the services, in association with which the certification mark is to be used. Instead, the Trademarks Act provides for a licensing scheme under which the owner of the certification mark may license others to use to mark in association with their own goods and services, so long as those goods or services meet the owner's defined standard.[18]
 
A trademark application may be filed on the CIPO website. There is a $336 base application fee if a business submits their application online through the CIPO website, and a $438 base application fee if a business submits through another channel.[19] An application for a trademark may be refused if it is confusingly similar to a previously filed trademark.[20] This is bad news for you if your billion-dollar idea involved a soft drink company called "doca dola". In order to expedite the process of filing a trademark, a business can search the Canadian Trademarks Database to look for similar trademarks before submitting their trademark application to determine whether their proposed trademark is confusingly similar to an existing one. The Trademarks Act deems a trademark to be adopted once it has been filed for registration in Canada. The filing date of an application is the date that the Registrar received an application meeting all its filing requirements.
 
Once you've taken all the necessary steps to protect the valuable information involved in your startup, you can start building your entrepreneurial empire. So get out there, maybe get a small loan of $1 million from your father, and use your copyrighted, patented, or trademarked billion-dollar idea to build your unicorn startup!

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[1] Copyright Act, RSC 1985, c C-42 s 2. [“Copyright Act”]
[2] Ibid at section 53(2).
[3]Ibid at section 29.
[4] Ibid at section 35(1).
[5] Ibid at section 6.
[6] Patent Act, RSC 1985, c P-4 [Patent Act].
[7] Ibid at section 44.
[8] Government of Canada, “Patent Fees” (1 February 2021), online: Canadian Intellectual Property Office <https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr00142.html>.
[9] Ibid.
[10] Ibid.
[11] Trademarks Act, RSC 1985, c T-13.
[12] Government of Canada, “What Are Trademarks?” (3 July 2019), online: Canadian Intellectual Property Office <https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr03718.html>.
[13] Government of Canada, “A Guide to Trademarks” (24 July 2020) online: Canadian Intellectual Property Office < https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02360.html?Open&wt_src=cipo-tm-main&wt_cxt=learn> [TM Guide].
[14] Ibid.
[15] Ibid at "Understanding Trademarks".
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Canadian Intellectual Property Office, “Complete list of fees for trademarks” (28 April 2017) online: Canadian Intellectual Property Office <http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr04194.html>.
[20] Ibid.