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Legal Q&A: Answers to five common legal questions

By MyLegalAnswers |

  1. What is a copyright?
  2. What is a patent?
  3. What is a trade-mark and what can be trade-marked?
  4. What documents must be filed to incorporate a company?
  5. What matters are approved at an annual shareholders' meeting?

Question: What is a copyright?
Copyright refers to the bundle of rights conferred by the Copyright Act on an author or owner concerning his or her work (i.e., original literary, dramatic, musical and artistic work), performance, sound recording, and/or communication signal.

The basic rights conferred to the author or owner include the exclusive rights to:

  1. produce or reproduce the work (or any substantial part of it) in any material form whatsoever;
  2. perform the work (or any substantial part of it) in public;
  3. if unpublished, to publish the work (or any substantial part of it);
  4. public telecommunication of the work;
  5. adaptation of the work;
  6. translation of the work;
  7. authorize any such acts (i.e., a-f above).

In addition, the author of a work is also entitled to what are called moral rights. Moral rights ensure that the author's integrity is not compromised because of an unauthorized change in the work, or by association with a product, service, cause or institution.

It is important to note that you should register your copyright with the Canadian Copyright Office to ensure maximum legal protection of your rights.
Citation/References: Sections 3 and 5 of the Copyright Act.

Question: What is a patent?
A patent is a government grant, provided in a government issued document, that gives an inventor certain exclusive rights (e.g., to use, make or sell) regarding an invention which is new, useful, and ingenious.

Granting patents promotes ingenuity and inventiveness by providing protection to the inventor for a limited time. This enables the inventor to profit from his or her hard work in return for disclosing the invention to the public through the Canadian Patent Office. Details regarding the invention are made public 18 months after the owner files the patent.

It is important to note that the Canadian patent system uses a "first to file" rule. Only the first person to file a patent will be granted the patent, and thus, the exclusive rights which the patent confers. This is regardless of whether or not another person may have independently invented the same thing earlier - called the "first to invent" rule.
Citation/References: Section 2 of the Patent Act.

Question: What is a trade-mark and what can be trade-marked?
A trade-mark is a mark used by someone for the purpose of distinguishing wares or services manufactured, sold, leased, hired or performed by him or her from those of others. It is a word, symbol, or combination of both, that is used in the marketplace to distinguish a product or service. In addition, trade-marks often are interpreted as a gauge of the reputation of the manufacturer or service provider.

Trade-marks can be grouped into three types:

  1. Ordinary Marks: These are symbols or words that isolate products or services from others in the marketplace. For example, a bakery named "Rise and Shine" could be registered as a trade mark.
  2. Certification Marks: These marks meet a defined standard when applied to products or services. They are usually owned by one person and licenced out to other manufacturers or organizations. For example, a tow truck company uses the CAA logo to identify that it is an authorized service provider for CAA.
  3. Distinguishing Guise: This identifies the unique "look and feel" of a product and/or its packaging, as well as a service. For example, a cookie in your own likeness may be registered as a "distinguishing guise."

It is usually easiest to contact a trademark agent or lawyer if you wish a register a trade-mark.
Citation/References: Sections 12, 13, 14 and 15 of the Trade-marks Act.

Question: What documents must be filed to incorporate a company?
To incorporate in Ontario, the following documents must be submitted to the Ministry of Consumer and Business Services or may be filed electronically.

  1. The Articles of Incorporation are completed, in duplicate, using "Form 1", with both of the copies bearing the original signature of each of the incorporators, together with his or her full name and residential address.
  2. If incorporating under a descriptive name, the original copy of the NUANS name search report not more than 90 days old.
  3. A covering letter, identifying the name, return address and telephone number of a contact for the corporation.
  4. The then current filing fee.

A Consent to Act as First Director must be completed in duplicate using "Form 2" and originally signed, where the Articles name an individual who is not an incorporator as its first director. Due to recent changes in the legislation, it no longer necessary to file this document with the Articles of Incorporation.

Citation/References: Section 5 and 273 of the Business Corporations Act (Ontario) and Section 24 and 46 of Regulation 62 under the Business Corporations Act (Ontario)

Question: What matters are approved at an annual shareholders' meeting?
There are a few matters that require approval by the shareholders at an annual shareholders' meeting. Specifically, the shareholders will elect directors (except those elected for a term greater than one year which has not yet expired), appoint auditors and confirm the receipt of the financial statements.

Note that all other business that requires the approval of shareholders is "special business" and may, but is not required to be, considered at the annual meeting.
Citation/References: Sections 101(5), 129(5), 149(1) and 156(1) of the Business Corporations Act (Ontario)

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