Freedome of Expression Rights vs. The Trademark Act The freedom of expression is an important right enshrined in S. 2(b) of the Canadian Charter of Rights and Freedoms. The Trade-marks Act protects the right to protect your registered trademark against depreciation from others making use of that mark. There can be friction and tension when these two rights conflict.
Canadian courts have had to deal with these conflicts several times to determine whether free speech trumps the rights of a trademark holder. For example in Source Perrier SA v Fira-Less Marketing Co, (1983) 70 CPR 2d 61, Fira-Less sold Pierre Eh! carbonated bottled water, and claimed that it was a parody of then-Prime Minister Pierre Trudeau. Source Perrier successfully obtained an injunction against Fira-Less. The court in this case said: “[t]he most liberal interpretation of ‘freedom of expression’ does not embrace the freedom to depreciate the goodwill of registered trademarks, nor does it afford a licence to impair the business integrity of the owner of the marks merely to accommodate the creation of a spoof.”
In the later case Michelin v CAW Canada, (1996) 71 CPR (3d) 348, the court drew a distinction between commercial and non-commercial use when in …