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The Canadian Flag – Strong and Free but not Without Restrictions

February 17, 2015

By François Larose and Jennifer McKenzie

As Canadians celebrate the 50th anniversary of the Canadian flag on February 15, 2015, we take a moment to remind you of the restrictions regarding the commercial use of the flag and the 11-point maple leaf.

The Canadian flag is broadly protected under the Trade-marks Act. Simply put, the Act prohibits any person from adopting, using or applying to register, as a trademark or otherwise, any mark consisting of the Canadian flag or something that so nearly resembles the Canadian flag as to likely be mistaken for it. The Canadian flag was first advertised in the Trade-marks Journal on April 14, 1965, as follows:

Canadian flag

Notwithstanding the prohibition, the Act specifically states that the Canadian flag may be adopted, used and/or registered with the consent of the Canadian Government, which may be obtained by writing to the Department of Canadian Heritage, usually within seven to 10 days after providing an example of the proposed use.  Although there are no express guidelines on when permission will or will not be granted, in our experience, the Department will consider whether the use is in good taste, and whether there is any misleading impression of government patronage or association with the commercial use.

As for the commercial use of the 11-point maple leaf, written permission does not need to be sought, but there are guidelines to adhere to.  As set out in the 1965 Order in Council P.C. 1965-1623, the 11-point maple leaf is permitted if its use in a design or trademark conforms to good taste, and, when filed for registration, if the owner of the trademark application disclaims the right to the exclusive use of the maple leaf and does not attempt to prevent anyone else from using the maple leaf.

Happy National Flag of Canada Day!

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François Larose François Larose
B.A.A., LL.L., LL.M.
514.871.2109  email François Larose
Jennifer McKenzie Jennifer McKenzie
B.A. (Hons.), LL.B.
416.957.1628  email Jennifer McKenzie