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52 S E P T E M B E R 2 0 1 8 w w w . c a n a d i a n l a w y e r m a g . c o m are the regulation of interprovincial or international trade and commerce. By removing use, actual trade is no longer necessary, she says. "It is hard to justify the amendments as valid under a 'trade and commerce' heading if the granting of exclusive rights and the associated right to enforce those exclusive rights occurs with- out any trade at all, either in Canada or abroad," Rowden says. The amended act will include another change that could make the trademark application process more challenging, says Evans. The distinctiveness of a trademark used to be challenged in opposition proceedings, but now in the application process, examiners will be able to reject an application if they deem it insufficiently distinctive. "It's going to become a much more challenging process to register a trademark because you will have to effectively file affidavit evidence showing that a trademark has developed a reputation or goodwill such that it now functions as a trade- mark," Evans says. But weighed against the removal of the use requirement, Evans says, registering marks will still generally be faster and easier. The amendments to the act will also expand the definition of a trademark to include smells, tastes, textures, holograms, moving images and colours. This means a marijuana company that devel- ops a distinctive scent will be able to trademark its brand's aroma, so long as it can show this mark has developed distinctiveness in Canada, says Evans. "So, what they're really doing is saying anything, any kind of indicia that a company can have that that identifies them as a source of supply or source of services can be a trademark," Naiberg says. Before the additional fees are attached to the Nice classes next year, Naiberg says, companies should be proactive and imagine the possible uses they will have for their trademark in the future and file a trademark application now. "If you're a company that's making shirts with a particular name but you think maybe in the future will be making wallets and jewelry and shoes, you might file for all of those things now," he says. The new Trade-marks Act will shorten the term a trademark is valid to 10 years from 15. There is pressure on the trademarks offices to clear dead wood now that the removal of the use require- ment will make obtaining a trademark easier, says Naiberg. Making trademark owners renew more frequently will incentivize their dropping the marks they don't use to save money. "If you're not using it, you won't renew it. And so there will be fewer marks just sitting there on the register screwing people up," he says. According to Naiberg, another positive aspect of the new rules for trademarks lawyers are "divisionals," where a trademark appli- cant who is applying to use a mark for multiple goods can divide the application to isolate the contentious items and carry on the application process with the goods that were not opposed. L E G A L R E P O R T © 2018 Thomson Reuters Canada Limited 00251VP-A92268-CM Order # L7798-8630-65203 $125 Softcover June 2018 approx. 420 pages 978-0-7798-8630-2 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. New Edition The Trial of Sexual Offence Cases, Second Edition The Honourable Madam Justice Michelle Fuerst, Mona Duckett, Q.C., and The Honourable Judge Frank P. Hoskins The Trial of Sexual Offence Cases, Second Edition takes you through the entire process of a sexual offence case, from client interview to the completion of the proceedings in the criminal justice system. You'll gain a complete view of sexual offence trials from three unique perspectives – the defence, the Crown prosecutor, and the judge. The work suggests plans that you can implement, and gives you a glimpse into the thoughts and tactics that your opponent may consider. New in this edition • A new chapter on human trafficking • Updates throughout the publication to reflect jurisprudential developments such as: – New Supreme Court of Canada and provincial appellate level authorities clarifying the scope of consent, including vitiation of consent due to fraud (non-disclosure of HIV status), bodily harm, or incapacity, and the requisite elements to the mistaken belief in age defence – Recent provincial appellate level authorities regarding the application and scope of s. 276 of the Criminal Code, including additional and recent examples of admissible and inadmissible evidence – Decisions regarding the importance of avoiding the stereotypes and myths in assessing evidence during sexual assault trials Develop effective strategies for prosecuting or defending sexual offence cases Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800

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