Welcome to Dear IP, an initiative of IPIC’s Public Awareness Committee (PAC). Each question in this column is answered by an IPIC member who encounters these issues in every day life. Every month, Dear IP will answer the questions you actually meant to ask with clarity and real-world context. IPIC will continue to expand this collection as new questions emerge.
Note: The information is for general guidance only and isn’t legal advice. For professional advice on your situation, please consult a qualified IP professional. If you have a “Dear IP” question you’d like us to consider for a future update, let us know by email.com admin@ipic.ca
No, the Canadian Intellectual Property Office will not police your intellectual property rights – that is the responsibility of the rights holder (you). If you own an industrial design registration, you will need to engage in an appropriate monitoring program to ensure that competitors are not copying your design. - Rob Hendry, Procido LLP
AI systems are increasingly able to identify improvements and create inventions without human intervention, which challenges the traditional patent regime. This issue received attention after 2018 when Stephen Thaler sought patents for two inventions, a food container for rapid reheating and an emergency flashing beacon, created using an AI system called DABUS. Thaler’s patent applications were denied in Australia, the US, the UK, and the EU on the basis that only natural persons, and not AI, can be inventors. Although South Africa granted a patent listing DABUS as the inventor, South Africa does not examine patent applications substantively, and hence, the issue of inventorship by AI was not explicitly addressed.
In Canada, “inventor” has not been defined in the Patent Act. The Canadian courts have inferred that the inventor must be a natural person or persons who conceived the new and useful invention and cannot be a legal person such as a corporation.[1] [2] This inference, however, was in the context of comparing a natural person with a corporation, and the question of whether AI can be an inventor in Canada remains unanswered. A preliminary decision of the Patent Appeal Board regarding Thaler’s food-container patent application indicates that Canada is also heading in a direction where “inventor” must be a natural person and cannot be an AI system. The final outcome may clarify this issue further.
[1] Apotex Inc. v. Wellcome Foundation Ltd., 2002 SCC 77 at paras 95-97.
[2] Sarnoff Corp. v. Canada (Attorney General) (F.C.), 2008 FC 712 at para 9.
Is it true that counterfeit goods are manufactured in the same factories as the real goods manufactured by trademark owners?
"Dear Money Saver: Absolutely and definitely, NO! Counterfeit goods are often manufactured in illegal and unregulated facilities. These operations frequently disregard labor laws and safety standards in pursuit of profit. The inferior materials and lack of quality control measures should make you think twice before purchasing a potentially dangerous counterfeit item. These counterfeit goods can harm you and your loved ones, so be sure to tell your family and friends to shop safely and smartly." - David Lipkus, Lipkus Law LLP
Is it really so wrong to purchase counterfeit goods if they look and function just like the real thing?
Dear Spendthrift: While the allure of a lower price can be tempting, purchasing counterfeit goods can be dangerous, and the money may go to organized crime links, including drug trafficking, human trafficking, and terrorism. While it might seem like a victimless crime to purchase counterfeit goods, you wouldn’t want to be part of a dishonest transaction. There are too many far-reaching negative consequences for businesses, consumers, and society at large. Just because something looks the same on its surface doesn’t mean that the quality is the same. - David Lipkus, Lipkus Law LLP
What is a dupe – are all dupes counterfeit? What is a Counterfeit vs. Knockoff?
"Explaining the distinctions between dupes, counterfeits and knockoffs can be challenging, as the definitions often depend on the context of the goods involved, including factors like branding, design, and intent. What might be considered a “dupe” in one industry could be viewed as a counterfeit in another, making it important to evaluate each case individually. While not all dupes are counterfeit, understanding the difference between dupes, counterfeits, and knockoffs is essential because the terms are often misused, especially in the online space. Generally, a dupe (which is short for duplicate) is a product that mimics the look, feel, or function of an item but is sold under a different brand name and typically without infringing on trademarks. It does not pretend to be the original and it is simply “inspired” by another product. In contrast, a counterfeit is an illegal replica that uses the original brand’s name, logo, and packaging with the intent to deceive consumers into thinking it is the real thing. Knockoffs sit somewhere in between: they closely imitate the design or style of a branded product but do not use the brand’s actual name or identical trademarks. Whether something qualifies as a dupe, knockoff, or counterfeit often depends (yes, “it depends”) on the product’s intent, how it is marketed, and whether it misleads consumers.
All things considered, “Dupe Culture” has significantly blurred the lines between what counts as a dupe, a knockoff, and a counterfeit. With the rise of social media, influencer marketing, live selling, and the desire for luxury aesthetics at accessible prices, the term “dupe” has become a catch-all used to describe any lower-cost alternative to a high-end product, even when that alternative might actually be a counterfeit. The new and widespread casual use of the word “dupe” tends to downplay the ethical and legal distinctions between these categories. For example, someone might show a handbag on TikTok calling it a “dupe” for a designer item, but if that bag carries the original brand’s logo, protected design or attempts to replicate the branding exactly, therefore, it is not a dupe, it is a counterfeit. Similarly, knockoffs that very closely copy a product’s design might be passed off as harmless “dupes,” even though they can still infringe on design rights or raise IP and ethical concerns. Dupe Culture continues to normalize and unfortunately glamorize products that cross legal and ethical boundaries." - Melissa Tarsitano, Lipkus Law LLP
How do counterfeit goods impact the economy and local businesses?
"Counterfeit goods negatively impact Canada’s economy by diverting revenue away from legitimate businesses and reducing tax income for the government. Local retailers and manufacturers struggle to compete with cheap, unregulated imitations, which can lead to job losses and business closures. Counterfeits also pose significant safety risks, especially when products like electronics or cosmetics bypass Canadian regulatory standards. The presence of counterfeit, unauthorized and contraband goods undermine consumer trust, devalues brands, and discourages innovation, while law enforcement and CBSA must spend significant resources policing the issue. Overall, counterfeiting creates unfair competition and weakens the foundation of a healthy, regulated market." - Melissa Tarsitano, Lipkus Law LLP
Patent Questions
My Canadian patent covering one of my products was just granted. Can I describe the product as patented in adverts that will be seen by potential customers in the US and Canada?"
"No! In the US, stating that a product is patented when it is not covered by a US granted patent can have legal and financial consequences. Don’t take the risk. You should either make it explicitly clear that the product is only patented in Canada or prepare separate adverts for your US and Canadian customers. ." - Monique Henson, Photonic Inc.
I’ve started a business to make and sell blenders that use a new motor that I developed. With this new motor, my blenders can blend hard materials as quickly as the leading competitor’s, whilst making only a tenth of the noise. The investor that I approached said they won’t consider investing unless I tell them how the motor works. Should I tell them?
"You are right to be cautious; sharing those details without some form of protection in place could risk the investor taking your motor design elsewhere. Thankfully, there are a few things you can do to reduce that risk. The simplest (and free) option is to decline the request and instead offer to demonstrate the blender. Of course, this is only an option if you have a prototype and, crucially, if the investor wouldn’t learn any details of the innovative aspects of your blender (e.g. how the motor works) just from watching the blender in use.
The next best option is to get a non-disclosure agreement (NDA) executed with the investor before you tell them any details. Not all NDAs are made equal, so do contact an IP professional to ensure the information you share will be well protected. Even once you have an NDA in place, it is good practice to keep a written record of all confidential information that you have shared under the NDA. An easy way to do that is to send a summary email to the investor after each conversation.
You should also speak to a patent agent about whether your new motor is a good candidate for a patent application. A filed patent application can be a strong deterrent to anyone who might consider co-opting your idea and, if it ultimately results in a granted Canadian patent, could allow you to stop others from making and selling your motor in Canada. Businesses with patent filings also typically receive higher valuations.
What about investors who are not satisfied by the blender demonstration and refuse to sign an NDA? A filed patent application will provide some protection for your new motor in the absence of an NDA. Another option to consider is finding a third party to verify your design who is both trusted by investors and is willing to sign an NDA. Once an NDA has been executed with the third party verifier, you can safely share the details of your motor with them for their evaluation, allowing them to confirm the viability of your design for investors. This builds investor confidence without compromising the confidentiality of your motor design." - Monique Henson, Photonic Inc.
I wrote a children’s book and did all the illustrations; how can I protect my work in Canada?
As the author of the text and illustrations, you would be the owner of copyright therein. Copyright subsists in every original artistic, literary, dramatic and musical work and arises automatically on creation. It lasts for the life of the author plus 70 years. Owners of copyright have the exclusive right to reproduce, perform, and publish the work, or any substantial part thereof, in any material form whatever. Under Canadian copyright law, the author of a work is the first owner of copyright, with some limited exceptions, for example, works made by an employee in the ordinary course of employment. Otherwise, copyrights must be assigned in writing. Rights in copyright protected works can be registered in Canada by filing an application with the Copyright branch of the Canadian Intellectual Property Office and paying the requisite fee. A registered copyright is presumed valid and the information about authorship/ownership reflected in the registration certificate is presumed to be true unless proven otherwise.
You can signal to others that you claim copyright in the work by marking the work with the copyright symbol “©”, year of creation, and the copyright owner’s name. As the author/illustrator of the book, you would also have moral rights to be associated (or not) with that work, and to the integrity of that work. These moral rights are separately enforceable from the economic copy-right. - Tamara Céline Winegust, Smart & Biggar
What are your next steps if you have been caught using someone else’s copyrighted work without permission?
So, you’ve been put on notice of copyright infringement. If the notice is in the form of a letter, you should be able to identify if there is a specific action being requested. For example, some letters will only request that you cease and desist the infringing activity. Others might request monetary compensation for the infringement, and/or include other terms.
Once you’ve identified the requested action, you should evaluate the merit of the letter, including whether your use is covered under any exceptions to infringement. For example, if the work was used for the purposes of research, private study, education, parody, or satire, the use may not be considered infringement. This is a critical first step in deciding your strategy because, if the claim has merit, your first step should be to stop the infringing activity. While there may be no legal consequences for ignoring a cease and desist letter, doing so may prompt the opposing party to initiate a legal proceeding against you. At which point, if you have continued to use the copyrighted material without authorization after being put on notice of the infringement, this may give rise to higher damages awarded in litigation based on bad faith behaviour.
Lastly, if the claim has merit and you wish to respond to the notice, you will need to decide if you want to comply with the opposing party’s terms or negotiate. Sometimes, the drawbacks—including costs and lengthy wait times—associated with litigation outweigh any conditions and monetary sums requested by an opposing party, as complying with the conditions laid out in a letter may bring the matter to a close. However, keep in mind that you are not limited to the choices presented in such a letter. You may—after reviewing the contents—decide that you want to negotiate better terms. In this scenario, it is best to get the help of a lawyer to make sure you achieve the most desirable outcome possible. Furthermore, remember that if you want to make sure that the sender can’t sue you in the future for the past infringement, it is best to have a lawyer draft language in a settlement document that releases you from liability for any past activities. - Christopher Heer, Heer Law
Licensing Questions
How can I allow someone else to use my IP while maintaining ownership?
"You can grant permission to use your IP through a licence agreement, which allows others to use your intellectual property (IP) under defined terms without transferring ownership. The licence can be tailored to your needs, limiting use by time, geography, purpose, or exclusivity. For example, you might give a non-exclusive licence to multiple users or an exclusive licence to just one party, while still retaining ownership IP rights. Clear, written terms are key to protecting your interests and avoiding misunderstandings." - Anna Sosis, TD Bank Group
Can I use open-source software any way I want?
"Not quite. While open-source software is generally free to use, it comes with specific licence terms that govern how you can use, modify, and distribute it. Some licences are permissive (like MIT or Apache), while others (like GPL) have stricter requirements, such as sharing your source code if you distribute modified versions. Many open-source licences also require you to include copyright notices and give proper attribution to the original authors. Always review the licence carefully to ensure compliance - especially in commercial contexts." - Anna Sosis, TD Bank Group
Trademark Questions
Does registering my corporation’s name provide me with trademark protection?
"Registering your corporate name on the Federal or Provisional Business Name Registries provides minimal protection against other traders adopting and using the identical name in the same jurisdiction as you, for similar fields of service, but this is NOT trademark protection. Trademark Protection is a government granted monopoly to the right to the exclusive use and profit from a trademark in respect of specific goods and/or services all across Canada. Registered trademark rights generally supersede business name registrations. In other words, a registered trademark can prevent any other traders trying to use the identical or confusingly similar company name across Canada. It’s always good to speak with a registered trademark agent or lawyer to confirm what rights you have or need." - Heather Boyd, Pillar IP
I have a Canadian trademark for the name of my company. Can I mark that trademark with the ® symbol on my website, even if it might be viewed by my customers in other countries?
"If your trademark has been registered in Canada, you can freely use the ® on your .ca website to denote to others that the mark is registered in Canada. If you have a .com website and your goods are manufactured and sold in Canada, you are also free to use the ® on the website. Exporting goods to another country is considered USE of your mark in association with the Canadian registered mark in Canada. However, if you have a .com or other country URL (i.e. “.com.au”, etc.) and your company does not manufacture the goods and/or export them from Canada and the company is not registered in that other country (i.e. if you have goods/services manufactured in Ireland and the website carries an .ie URL), you may wish to consider using the ® only on Canadian-specific pages or posting a claim of entitlement in Canada alone (or whichever countries where the name is registered as a trademark). Some countries have marking laws where the use of the ® symbol when NOT registered in that country can be considered fraudulent or misleading and could result in penalties or fines being issued against the user. The use of the ® means that there is a federally registered trademark and the mark carries legal weight (the right of enforcement). If you’re unsure, use the ™ symbol to denote to the public that you’re using the name as a trademark and reach out to your friendly neighborhood Trademark Agent or Lawyer to advise you on what symbol you can use and/or how to register your name." - Heather Boyd, Pillar IP
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