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Trademark Infringement
Trademark infringement occurs when a person or business uses a name, logo, slogan, or other distinguishing mark that is confusingly similar to an existing trademark, tradename, or brand, causing members of the public to mistakenly associate the two. This confusion can lead to reputational harm, lost sales, and dilution of brand value for the rightful trademark owner. In Canada, trademark rights are protected under the Trademarks Act, which prohibits the unauthorized use of marks that are likely to cause confusion with a registered trademark. However, even in the absence of a registered trademark, Ontario businesses may have protection under the Business Names Act and common law principles such as passing off, which provide remedies against those who operate under deceptively similar business names. At Jahanshahi Law Firm, we assist businesses in identifying, responding to, and pursuing claims related to trademark infringement, helping protect the integrity of your brand and your competitive position in the marketplace.
Our Approach
At Jahanshahi Law Firm, our approach to trademark infringement is strategic, measured, and results-driven. When we are retained to act in a potential infringement matter, our first step is to conduct a thorough legal and factual assessment to determine the strength of your trademark rights and the extent of the infringing activity. Once infringement is confirmed or reasonably suspected, we typically begin by sending a formal cease and desist letter to the infringing party. This letter sets out the nature of the infringement, references the relevant legislation—such as the Trademarks Act, the Business Names Act (Ontario), and, where applicable, common law protections—and demands that the infringer immediately stop using the confusingly similar name, mark, or branding elements.
Our objective at this stage is often to resolve the matter without litigation by compelling the infringing party to voluntarily cease the unlawful use, abandon the infringing business name or domain, and provide written undertakings to avoid future misuse. If the matter is not resolved amicably or if the infringement is particularly harmful or persistent, we are prepared to escalate the matter by initiating legal proceedings. In appropriate cases, we may seek an interlocutory injunction—a court order restraining the infringing party from continuing their use of the mark while the litigation proceeds. This is a powerful remedy, especially where ongoing use would cause irreparable harm to your business or brand.
Throughout the process, we remain focused on enforcing your rights efficiently and decisively while minimizing disruption to your business. Whether through negotiation, administrative complaint, or litigation, we tailor our strategy to the seriousness of the infringement and your long-term brand protection goals.
What Constitutes Trademark Infringement?
Trademark infringement arises when someone uses a name, logo, slogan, or other identifying brand element that is so similar to yours that it causes confusion among the public. This confusion can mislead customers into thinking there is an association, endorsement, or affiliation between the two businesses—when in reality, none exists. The essence of trademark law is to protect the goodwill and distinctiveness of your brand and prevent others from unfairly benefiting from your reputation.
In Canada, the Trademarks Act prohibits the unauthorized use of a mark that is confusingly similar to a registered trademark in connection with similar goods or services. However, even if a business has not formally registered its trademark, it may still be protected under common law rights, particularly through the legal doctrine of passing off, which protects businesses that have built goodwill in a particular name or brand over time.
Trademark infringement can occur in many forms, including:
Using a similar business name that causes confusion with your established brand
Imitating a logo, colour scheme, or slogan that misleads the public about the source of the goods or services
Launching a website or social media page with a name or handle that mirrors your existing online presence
Selling products in packaging that resembles your brand’s trade dress or labelling
Registering a confusingly similar domain name (e.g., typosquatting or domain hijacking)
Importantly, confusion does not have to be intentional. Even unintentional similarity that results in public confusion may be enough to establish infringement. In assessing whether a mark is confusingly similar, courts consider several factors, including the degree of resemblance between the marks, the nature of the goods or services, the channels of trade, and the distinctiveness of the original brand.
FAQ
Do I need to have a registered trademark to stop someone from copying my brand?
No, you do not need a registered trademark to enforce your rights. While registration under the Trademarks Act provides stronger protection and nationwide rights, businesses in Ontario may still rely on common law rights through an action known as passing off. If your business has built up goodwill and recognition in a name, logo, or brand—even without registration—you may be able to stop others from using a confusingly similar mark, especially if the public is likely to be misled.
How long does it take to get an injunction?
If the infringement is urgent and ongoing, we may apply for an interlocutory injunction—a court order that prohibits the other party from continuing the infringing activity while the matter is being resolved. These applications are time-sensitive and fact-dependent. In some cases, courts can issue an injunction in a matter of weeks. However, the party seeking the injunction must show that they will suffer irreparable harm, that they have a strong case, and that the balance of convenience favours the issuance of the order.
Can I get damages for trademark infringement?
Yes, if you are successful in a trademark infringement or passing off action, you may be entitled to financial compensation. The court may award damages, an accounting of the infringer’s profits, or statutory damages (in the case of registered marks). In some cases, if the infringement is egregious, the court may also award punitive damages. The exact amount will depend on factors such as lost sales, harm to reputation, and the extent of the infringer’s benefit from the misuse.
What if I only operate in Ontario, and the infringer is in another province?
Trademark rights under the Trademarks Act apply nationally. If your mark is registered, you can enforce it across Canada, regardless of where the infringer operates. If your trademark is unregistered, your common law rights are typically limited to the geographic areas where you’ve established reputation and goodwill. That said, if your business has a strong online presence or national reach—even without physical locations—you may still be able to assert rights outside Ontario. We evaluate each situation based on your brand’s actual market penetration and public recognition.
Contact Us
If you believe someone is infringing on your trademark, business name, or brand identity—or if you’ve received a cease and desist letter and need legal guidance—Jahanshahi Law Firm is here to help. Our business law team provides practical, strategic advice to protect your rights and resolve disputes effectively. Whether the issue is local, online, or cross-border, we’ll guide you through your legal options and act quickly to protect your reputation and business interests. Contact us today to schedule a consultation and take the first step toward enforcing your brand.