Distinguishing guise (trade dress)

A franchisee meets this term when a brand’s appearance is said to belong to the franchisor. The Canadian Intellectual Property Office explains that a distinguishing guise referred to the shaping of goods or their containers, or the mode of wrapping or packaging goods, the appearance of which is used to distinguish them from the goods of others. See what a franchisee owns and can sell.

What the Act says now

The Trademarks Act lists “distinguishing guise” among its defined terms with the note Repealed, 2014, c. 20. Its definition of “sign” now includes a three-dimensional shape and a mode of packaging goods, and a trademark is a sign or combination of signs used or proposed to be used to distinguish a person’s goods or services from those of others, or a certification mark. The sources here speak of goods and packaging, not of a store’s look or layout, so do not assume they answer that question. Compare licensed use of a trademark.

What to ask

• Which shapes, packaging or other signs does the franchisor say it owns, and are they registered?
• Does the franchise agreement licence the franchisee to use them, and for how long?
• What happens to their use at the franchisee’s premises when the unit is sold?