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July-August, 2011 Vol. 101 No. 4 Back to TMR Main Page
 
Dilution, the Section 22 Debacle, and the Protection of Business Goodwill in Canada: Some Insights from U.S. Trademark Law and Policy
 
 
    Section 22 has been a highly controversial and problematic provision in the trademarks legislation of Canada for close to sixty years, and the time is now ripe for us to act on the many concerns raised by both trademark scholars and practitioners over the decades. As Canada has yet to fully embrace an “anti-dilution” cause of action in its legislation and recent jurisprudence, it may not be too late to address the concerns raised by section 22 through a legislative amendment. However, decisive action is required to have this “foreign object” removed from the Trade-marks Act, and to restore properly construed doctrines of “likelihood of confusion”
and “trademark use” as central pillars of trademark liability in
Canada, so as to forge a fairer balance between private rights and the public interest. It is indeed “time for the pendulum to swing back,” as we begin to finally realize the dangers of the
ambiguously amorphous “depreciation of goodwill” action in
section 22 of Canada’s Trade-marks Act.
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