Monday, 27 February 2023 13:49

Trademarks For Digital Products & Services - A Complete Guide

By  Jessica Perkins

Trademark laws applications have been pretty straightforward for centuries and often referred to as product or service identifiers. But the definition of products has since changed with the advancement in technology. For example, virtual goods that can be bought and sold in the metaverse are an entirely new concept. 

But digital products and services are not limited to the virtual world. Virtual realities are only an addition to digital products and services, which have existed for quite some time now and are dependent on trademarks for effective marketing.

Understanding Trademarks

A trademark helps distinguish a product or service from similar products or services and includes symbols, names, slogans, sounds, and smells. When used right, trademarks become synonymous with the product or a brand. 

For example, almost everyone who sees Nike's swoosh sign on a piece of clothing will recognize the brand even without the name Nike appearing on the fabric.

Traditionally trademarks were used to identify physical products, but countries have since expanded their laws to accommodate digital products and services.

Definition of Digital Products and Services

Digital products refer to products that are produced, distributed, and consumed in digital format. The main modes of delivery for these products are the internet, mobile devices, and other forms of electronic media. 

There are different options for accessing digital products, with the main option being downloading from the internet, streaming, or accessing them on the internet. Examples of digital products include computer and mobile applications, games, e-books, websites, and cloud computing, among others. 

On the other hand, digital services are online services that allow users access to content, tools, or functionality and can include cloud computing, e-commerce, and digital marketing platforms. NFTs (non-fungible tokens) are also emerging as a new form of digital products but are not currently recognized under the broad category of traditional digital goods and services.

How Do Trademarks for Digital Products Work

There aren't any major differences in how trademarks work for digital products and services and how they work for traditional products and services. In both cases, trademarks help customers pick out products or services from others in the market. 

Choosing a Trademark for Your Digital Products

The process of trademarking identifiers for your digital product and services stays the same. The best approach when choosing a trademark is picking one that is unique, distinctive, memorable, easy to remember, and spell. These characteristics make it easier for your customers to pick them out and locate them on the internet. 

Some aspects of your trademarks should give a slight impression of what your products or services are all about. For example, if you are dealing with a photo editing tool, you want to come up with a name that suggests it has something to do with pictures or photographs. 

Eligibility for Registration

Choosing trademarks for your digital products does not mean you get automatic rights to use them in marketing your products. They must pass the eligibility test to be registrable under Canadian trademark laws. First, it cannot be similar to an existing trademark or easily confused with one. Also, it cannot be a generic term, deceptive or misleading, or contain offensive words.

Testing the originality of your trademarks involves conducting a trademark search in your country's trademark database. All registered trademarks in Canada are placed in the CIPO's (Canadian Intellectual Property Office) trademark database, so you must conduct your first search here. Passing the CIPO database test is the first hurdle. You will still need to conduct an online search to ensure that no one can claim ownership of the trademark on a first-to-use basis. 

Digital products and services can move over vast distances quickly since all a person needs is a device and an internet connection. Therefore, registering on a global scale should be a consideration, in which case you will also need to search international databases. But a search on the WIPO's (World Intellectual Property Organization) website is sufficient. 

If you are having problems navigating the trademark registration process in Canada, this Canadian trademark FAQ guide can help you get answers to some of your questions. However, the best approach is getting the help of an IP lawyer. 

How Long Do Trademarks for Digital Products and Services Last

Under Canadian law, all trademark protections last ten years from the registration date, irrespective of the type of products or services. At the end of the ten years, the trademark rights holder can renew those rights by paying a service fee, meaning your trademarks can remain enforceable for the longest you wish as long as you pay the service fees. 

Protections Accorded by Trademark Registration

Upon successfully registering trademarks for your digital products and services, you will receive a certificate as proof of ownership of those rights. It also means you have exclusive rights to use those trademarks for marketing your products and the power to stop others from profiting from them without your express authority. 

If you have registered your trademarks in Canada alone, your trademark rights will only be enforceable in Canada. If you want protection beyond Canadian borders, you must register for protection in all countries where you wish to enjoy similar protections. But the easiest option is registering your trademark with WIPO, which guarantees protection globally. 

Monitoring and Enforcing Your Trademark Rights

Registering your trademarks gives you exclusive rights to use them for marketing your digital products and services. However, it does not guarantee that others will not try to ride on your hard work to sell their products. 

Unauthorized use of your trademarks can significantly dent your reputation and profits, so you want to keep an eye out for an infringement. One way of policing your trademarks is conducting regular checks on the internet to ensure nobody is using your trademarks without your consent.

Several tools on the internet can help you with policing your trademarks, but if you feel like it's too much of a task, you can hire professional IP monitoring agencies to help with policing. If you are aware of any infringement case, consider hiring a lawyer to help you take legal action against the infringing party, which can include suing them for damages.


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