Entrepreneurs in Canada: Information on Intellectual Property Law
Immigrant entrepreneurs who come to Canada to develop and start a business should be familiar with intellectual property law in Canada in order to protect their business and intellectual assets.
Intellectual assets can include inventions, new technologies, new brands, original software, novel designs, unique processes and more. The Government of Canada website states that is it crucial to use intellectual assets strategically to run a business and that protecting these assets can give businesses a competitive advantage in the market.
In Canada, you can protect your intellectual property by submitting applications for a patent, a trademark or for registration of a copyright.
Through a patent, the government gives the inventor the right to stop others from making, using, or selling an invention from the day the patent is granted to a maximum of 20 years after the day on which the application was filed. The rights given by a Canadian patent extend throughout Canada, but not to other countries. Similarly, foreign patents do not protect an invention in Canada.
The first to file a patent application for an invention is entitled to the patent. This means that you should file as soon as possible in case someone else is on a similar track.
An invention is eligible for patent protection if it is:
- New – first in the world
- Useful – functional and operative
- Inventive – showing ingenuity and not obvious to someone of average skill who works in the field of your invention
The invention must also be:
- A product
- A composition
- A machine
- A process
- An improvement on any of these
Patent infringement happens if someone makes, uses, or sells your patented invention without your permission in Canada. If you believe your patent has been infringed, you may be able to sue for damages.
The Patent Act does not require that articles be marked “patented”. However, you may wish to mark your invention as “Patent applied for” or “Patent pending” after you have filed for your application. Although these phrases have no legal effect, it may warn others that you will be able to enforce your exclusive right to make the invention once a patent is granted.
Visit the Government of Canada’s page on patents for more information.
A trademark is a combination of letters, words, sounds, or designs that distinguishes one company’s goods or services from those of others in the marketplace. When you register your trademark, you gain exclusive rights to use it throughout Canada for 10 years, and it is renewable.
Over time, a trademark can stand for not only the actual goods and services a person or company provides, but for the reputation of the producer.
There are two types of trademarks:
- An ordinary trademark: includes words, designs, tastes, textures, moving images, mode of packaging, holograms, sounds, scents, three-dimensional shapes, colours, or a combination of these used to distinguish the goods or services of one person or organization from those of others
- 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.
Before filing a trademark application, a good first step is to search the Canadian Trademarks Database to ensure your trademark cannot be confused with someone else’s. If it does, you could end up infringing on someone else’s trademark and end up in court.
Visit the Government of Canada’s guide to trademarks for more information.
Copyright is the exclusive legal right to produce, reproduce, publish, or perform an original literary, artistic, dramatic or musical work. The creator of the work is usually the copyright owner. However, an employer may have copyright in works created by employees, unless there is an agreement stating otherwise.
Canadian law protects all original creative works, provided they meet the conditions set out in the Copyright Act. When you own the copyright of a work, you control how it is used and others who want to use the work will have to get your permission.
Generally, an original work is automatically protected by copyright the moment you create it. By registering your copyright, you receive a certificate issued by the Canadian Intellectual Property Office that can be used in court as evidence that you own it.
A copyright exists in Canada during your lifetime and for 70 years following your death. After your death, the work is in the public domain, meaning anyone can use it.
Visit the Government of Canada’s guide to copyright for more information.
How to come to Canada as an entrepreneur
Immigrant entrepreneurs looking to come to Canada to develop and build a new business idea have a variety of immigration options.
The Federal Start Up Visa Program encourages immigrant entrepreneurs to grow their companies in Canada. Successful applicants link with private sector organizations in Canada, where they can receive funding, expertise, and guidance in starting and operating their enterprise. Canada targets entrepreneurs who have the potential to build innovative companies that can create jobs in the Canadian labour market and that can compete on the global scale.
In Quebec, the Quebec Entrepreneur category is designed for qualified business owners and managers who can create or acquire an agricultural, commercial, or industrial business in the province of Quebec.