Intellectual Property in Canada
Capital
Ottawa
Official Language
English, French
Currency
Canadian Dollar
Payroll cycle
Bi-Monthly
Quick facts about Canada
Canada is one of the United States' most important economic partners. Home to one of the best public education systems in the world, Canada is a booming talent hub across all industries, including tech, financial services, healthcare, and agriculture. Despite being a relatively small country by population, Canada's GDP is approaching $2 trillion. Companies looking to expand globally can hire top Canadian talent by partnering with an EOR service like Via.
When you begin to expand your business or hire in Canada, you’ll likely be concerned about protecting trade secrets. This means you’ll need to understand intellectual property laws and regulations in Canada
Intellectual property is a complex issue. As start hiring Canadian talent, you will need to understand what constitutes intellectual property in Canada, how to register these assets, and how to protect them across both your business's home country and Canada.
Here we’ll give basic information about everything companies should know about intellectual property rights in Canada and how they can go about protecting these assets.
What is intellectual property in Canada?
Intellectual property, commonly referred to as intellectual assets, in Canada are intangible assets created by the human intellect that can be protected under intellectual property laws.
In Canada, intellectual assets include a variety of creations, such as inventions, digital products, designs, trade secrets, artistic works, and brands. These assets are often valuable to both businesses & individuals across the country. They can provide a competitive advantage or a source of revenue.
What is the Canadian Intellectual Property Office?
The Canadian Intellectual Property Office (CIPO) is responsible for granting & registering patents, trademarks, copyrights, industrial designs, and integrated circuit topographies in Canada. They also offer an online database where you can search for and view details about registered Canadian patents, trademarks, and industrial designs.
The CIPO operates under the authority of the Canadian government's Innovation, Science and Economic Development Canada department.
How are intellectual property laws enforced in Canada?
In Canada, there is no one single governing organization that oversees how intellectual property laws are enforced. Canada’s structure is different from countries like Mexico, which has an entire institute responsible for managing intellectual asset cases.
Intellectual property laws are enforced in Canada through various mechanisms, including:
Civil litigation: IP owners can file a lawsuit in Canadian courts to enforce their IP rights and seek damages or injunctions against infringers. The Federal Court (Canada’s Supreme Court) of Canada has jurisdiction over most IP disputes, including patents and trademarks, and copyrights.
Criminal litigation: Certain IP offenses, such as counterfeiting and piracy, are considered criminal offenses under Canadian law. Law enforcement agencies can investigate and prosecute these offenses criminally.
Administrative proceedings: IP owners can also seek enforcement of their IP rights through administrative proceedings, such as opposition proceedings before the Canadian Intellectual Property Office. The CIPO has the power to cancel or revoke registered IP rights in certain circumstances.
Customs enforcement: The Canada Border Services Agency (CBSA) has the authority to seize and detain infringing goods at the Canadian border. IP owners can register their IP rights with the CBSA to facilitate customs enforcement and prevent the importation of infringing goods into Canada.
What is considered intellectual property in Canada?
Canada’s intellectual property laws encompass a range of intangible creations of the human intellect that are protected by law. In Canada, there are five main types of IP protection in Canada: patents, trademarks, copyrights, industrial designs, and trade secrets.
Characteristics of intellectual property in Canada
In general, intellectual property in Canada is governed by these 3 characteristics:
Exclusivity: The owner is the only one able to sell/use what they have produced
Territorially: Rights are granted in the individual territory the property was produced in
Temporarily: Time frame the produced item is protected and can be used commercially after being registered
Patents
A patent is a legal protection granted to an inventor for a new, useful, and non-obvious invention. In Canada, patents can be granted for a wide range of inventions, including machines, processes, compositions of matter, and improvements thereof. Canadian patents are good for up to 20 years from the date that you file and the application is available to the public 18 months after you file.
Trademarks
A trademark is a symbol, word, or phrase used to identify and distinguish the source of goods or services. In Canada, trademarks can be registered for a wide range of products and services, including goods, services, and certifications marks.
Copyrights
Copyright protection in Canada is granted to original works of authorship, including literary, artistic, musical, and dramatic works. Copyright protects the expression of ideas, but not the ideas themselves.
Industrial designs
An industrial design is the visual appearance of a product or its ornamentation. For example, the shape of a table or design of a plate can be registered as an industrial design. In Canada, industrial designs can be registered for a wide range of products, including furniture, clothing, and consumer electronics.
Trade secrets
Trade secrets are confidential information and knowledge, such as formulas, processes, and methods, that are used in business and kept secret to give a competitive advantage. Trade secrets can range anywhere from the sauce on a Big Mac to Google’s Search Algorithm.
Confidentiality
Employers are allowed to have employees sign confidentiality agreements in Canada. The employee is tasked with protecting all technical secrets of a company to avoid any damage caused to the business where they work.
Non-competes and exclusives
In Canada, employers are allowed to have employees sign non-compete agreements, meaning they aren’t allowed to share information or work with a competitor on a similar idea.
However, non-compete agreements are considered a form of restraint on trade and are subject to scrutiny under the common law doctrine of restraint of trade. Under this doctrine, any contractual provision that restricts an individual's ability to engage in lawful competition may be deemed void and unenforceable if it is found to be unreasonable in scope or duration.
What is excluded from intellectual property in Canada?
There are certain properties and concepts that are excluded from intellectual property protection in Canada. Some examples are:
Ideas: Intellectual property laws do not protect ideas in and of themselves. Instead, they protect the expression of those ideas. For example, a novel can be protected by copyright, but the underlying idea behind the novel cannot be protected.
Facts: Intellectual property laws do not protect facts, as facts are considered to be part of the public domain.
Methods of doing business: Intellectual property laws generally do not protect methods of doing business, such as business models or strategies.
Scientific principles: Intellectual property laws do not protect scientific principles, as they are considered part of the public domain.
Natural phenomena: Intellectual property laws do not protect natural phenomena, such as the laws of nature or natural occurring substances.
Intellectual property protections in Canada for foreign companies
Intellectual property for foreign companies hiring or operating frenchin Canada is protected through a variety of laws, including:
Canadian patent law: Foreign companies can protect their inventions in Canada by applying for a Canadian patent. To obtain a Canadian patent, the invention must be novel, non-obvious, and useful.
Canadian trademark law: Foreign companies can protect their trademarks in Canada by registering them with the Canadian Intellectual Property Office. To obtain a trademark registration in Canada, the mark must be distinctive and not confusingly similar to any existing marks.
Canadian copyright law: Foreign companies can protect their original literary, artistic, musical, or dramatic works in Canada by obtaining copyright protection. Copyright protection arises automatically upon creation of the work, but registration is recommended to facilitate enforcement.
Trade secret law: Foreign companies can protect their trade secrets in Canada by implementing contractual agreements, such as non-disclosure agreements, and by taking steps to maintain the confidentiality of their proprietary information.
International treaties: Canada is a signatory to several international treaties, including the Paris Convention for the Protection of Industrial Property, the Patent Cooperation Treaty, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). All of these treaties provide a legal framework for protecting intellectual property in Canada for both Canadian and foreign businesses.
How to protect intellectual property when hiring in Canada
When you’re hiring in Canada but your business is based in another country, there are a few different approaches you can take to ensure you protect your business’s intellectual property: use an independent contractor, set up your own entity, hire a third-party staffing agency, or partner with an EOR service like Via.
Independent contractor
You may decide to either work with an independent contractor or outsource to a third-party staffing agency but both options can cause internal problems protecting intellectual property at your company.
When you give an independent contractor access to your intellectual assets in Canada, they can claim property over anything that they created while working for you if you don’t include the correct clauses in the contract agreement.
Set up an entity
If you want to set up your own entity in Canada to hire and staff your own employees, you can do this as another option to protect intellectual assets. However, setting up an entity can be costly and time consuming, and is filled with bureaucratic hurdles. For this reason, many companies setting up an entity partner with a PEO service.
Staffing agency
Another option is to partner with a third-party staffing agency to outsource your hiring in Canada. This option can risk your intellectual property being exposed to those outside of your company as the staffing agency acts as the employer for your employees.
EOR service
Another option to avoid entity setup and problems with intellectual property is to work with a global EOR provider like Via.
An employer-of-record in Canada can help you manage your assets without the stress of your important company secrets falling into the wrong hands. We can help you draft an employment contract that outlines exactly how your intellectual assets will be used by the employees you hire and who will have the rights to them
Intellectual property agreements and policies in Canada
All businesses expanding to Canada should write a solid intellectual property agreement to protect themselves.
Some important benefits of intellectual property agreements include:
Protection of intellectual property: An intellectual property agreement provides legal protection for intellectual property rights, such as patents, trademarks, and copyrights. This helps to prevent unauthorized use or infringement of these rights and allows for legal action to be taken if necessary.
Promotion of innovation and creativity: Intellectual property agreements help to promote innovation and creativity by providing a legal framework that encourages investment in research and development. This can lead to the creation of new products, services, and technologies.
Economic: Intellectual property agreements can have economic benefits, particularly for companies that rely on intellectual property for their business. If you don’t register a new product or service, you could risk one of your competitors rolling it out before you do. These agreements can help to create a more stable business environment, encourage investment, and promote economic growth.
Protection of consumers: Intellectual property agreements also help to protect consumers by ensuring that they are not deceived by counterfeit or infringing products. By requiring that products and services meet certain standards and are properly labeled, consumers can be confident that they are getting what they paid for.
How did NAFTA impact intellectual property in Canada?
The North American Free Trade Agreement (NAFTA), which was in force from 1994 to 2018, was an intellectual property law across borders for Canada, the United States, and Mexico.
NAFTA included protections for:
Patents
Trademarks
Copyright
NAFTA was replaced in 2020 by the USMCA to further expand provisions on intellectual property between the 3 countries.
Intellectual Property and the USMCA
The United States-Mexico-Canada Agreement (USMCA) is a trade agreement that came into force on July 1, 2020, replacing the North American Free Trade Agreement (NAFTA). The USMCA includes provisions related to the protection of intellectual property rights in all three countries.
Some key provisions of the USMCA related to intellectual property include:
Patent protection: The USMCA requires each country to provide patent protection for at least 10 years from the date of filing for new pharmaceutical products. This is an increase from the 8-year protection provided under NAFTA.
Copyright protection: The USMCA requires each country to provide copyright protection for at least 70 years after the author's death, which is an increase from the 50-year protection provided under NAFTA.
Digital trade: The USMCA includes provisions related to the protection of digital trade and e-commerce, including protections for digital products and services, and prohibitions on data localization requirements.
Trademark protection: The USMCA requires each country to provide trademark protection for at least 10 years, with the possibility of renewal.
Protection of trade secrets: The USMCA requires each country to provide protection for confidential business information, including trade secrets.
Enforcement: The USMCA includes provisions related to the enforcement of intellectual property rights, including civil and criminal penalties for infringement.
Why companies partner with Via
Companies can build a hub in (country) of 1 to 100+ workers using a global EOR provider like Via. We manage local HR processes for direct employment like work visas, permits, benefits, payroll, background checks, and much more. Our team of local labor lawyers and experts ensure that your company always remains compliant while expanding abroad. We handle the responsibility side of things so you can focus on what matters: recruiting and managing your team. Our transparent prices allow you to pay full-time employees and contractors with no hidden set-up fees, no foreign exchange or transaction fees, and no minimums.
