Does a product that becomes "well known in Canada" by word-mouth, by reason of its reputation and use in the United States satisfy the requirements of s. 5 of the Trade Marks Act?
Canada (Federal), Canada
The following excerpt is from Motel 6, Inc. v. No. 6 Motel Ltd., 1981 CanLII 2834 (FC):
A mark that becomes "well known in Canada" by word of mouth, by reason of its reputation and use in the United States, does not satisfy the requirement of s. 5 of the Trade Marks Act. The requirement in that section to the effect that the mark become well known by reason of "such distribution or advertising" is peremptory and is a matter of substantive law and not of evidence, as stated by my brother Marceau J. in Valle's Steak House v. Tessier et al. (1980), 49 C.P.R. (2d) 218 at p. 225. The plaintiff therefore fails on this ground of attack.
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