The post 5 Essential Elements to Address in Your Sponsorship Agreement appeared first on ARTY LAW.
]]>Please note this blog post is for informational purposes only and does not constitute formal legal advice. If you have any questions about sponsorship agreements, feel free to contact us!
Visibility is at the heart of every sponsorship agreement. It is therefore crucial to define precisely what this visibility will consist of. For example: on which platforms will the sponsor appear? Posters? Banners? Social media posts? Will the visibility granted be equivalent to that of other sponsors? Will there be additional benefits such as a shout-out in a dedicated podcast segment? How long will that segment be? Precision is key.
Exclusivity is often a major consideration for sponsors seeking to maximize the impact of their involvement. If a sponsor requests exclusivity and you agree to grant it, it’s important to clearly define its scope in the sponsorship agreement. Does it relate to certain services or products? A particular industry? A specific territory? For how long?
If exclusivity is granted, it’s also crucial to review any prior agreements with other sponsors to ensure there’s no overlap.
How will the sponsor pay for the visibility you’re providing? Will it be a monetary contribution, an exchange of goods or services (in-kind sponsorship), or perhaps a hybrid model? In the case of in-kind sponsorship, it’s essential to detail the goods or services provided and their equivalent market value.
It’s also possible to structure part of the compensation around visibility objectives. In such cases, clearly define the performance indicators and the tools that will be used to measure them.
Once compensation is agreed upon, determine the payment terms. Will it be a lump-sum payment or multiple installments? What are the deadlines and conditions for each payment? If interest fees apply in the event of late payment, they must be explicitly included in the agreement, along with the applicable annual rate.
A sponsorship agreement may involve each party’s intellectual property rights.
For instance, providing visibility to the sponsor typically involves using their IP assets (name, logo, slogan, etc.). It’s therefore necessary to obtain the rights for such use and outline the related conditions (duration, format requirements, media, territory, etc.).
Conversely, the sponsor may wish to use content created by the sponsored party to promote the sponsorship (event videos, photos, etc.). As with the sponsor’s IP assets, specific terms must be agreed upon.
Morality clauses are increasingly common in sponsorship contracts. These clauses aim to protect one party from actions by the other party that could harm their public image, by clearly identifying the types of behavior or situations that could justify termination of the agreement.
What kinds of conduct constitute a breach of this clause? Illegal behavior? Discriminatory comments? Media scandals? Criminal convictions? Other actions likely to damage the other party’s reputation? When is such conduct considered problematic — only during the term of the agreement, or does it also include prior actions discovered during the relationship?
What are the consequences of a breach? Immediate termination of the contract? Financial penalties? What steps should be taken if an allegation is made?
Keep in mind that morality clauses can be mutual. A sponsor may want to cut ties with an individual or entity whose reputation is damaged — but the reverse is also true.
If you have questions about sponsorship agreements or need help drafting or reviewing one, don’t hesitate to reach out!
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]]>The post What Is a Sunset Clause in a Management Agreement? appeared first on ARTY LAW.
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Please note that this blog post does not constitute formal legal advice, but rather legal information. If you have any questions about sunset clauses or a management contract, please contact us!
In the context of a management agreement, the sunset clause allows the manager to continue receiving commission after the end of the agreement. The purpose of this clause is to reward the efforts made by the manager during the term of the agreement, bearing in mind that the results of such efforts are not always immediate and often have an impact on the career of the other party, even after the contractual relationship has ended.
Close attention should be paid to the sunset clause: if the other party ends up finding another manager, sums could be paid to both the current and former managers. In our experience, artists are often unaware of the sunset clause in their management agreement until they are ready to terminate it, leading to financial impacts that are often unexpected.
The name of this clause is rather revealing of its structure. Like a sunset, the sunset clause is usually (and ideally) structured in such a way that the commission payable after the termination of the agreement decreases over the years. Regressive percentages will therefore be stipulated in the agreement, depending on the duration agreed by the parties for the payment of this commission.
Three elements are usually addressed in a sunset clause: the duration of the clause, the revenue streams on which the commission will be calculated, and the applicable commission rates.
Close attention should be paid to the duration of the sunset clause. Despite the reference to the sunset, sometimes the clause is drafted in such a way that the sun takes a very long time to set, or never sets, and the manager ends up receiving a commission in perpetuity.
The duration of the sunset clause will usually be expressed in increments.
For example:
On which revenue streams will the manager continue to receive a commission during the agreed post-contractual term?
There are a multitude of ways of doing this to ensure the clause is fair to both parties.
As mentioned above, sunset clauses usually provide for regressive commissions during a specific term (although it is possible for the parties to proceed otherwise).
For example:
The creativity that can sometimes be found in compensation clauses applicable during the management agreement can also be applied to commissions applicable post-contractually. For instance, different rates could be indicated, depending on the type of income.
If you have any questions about sunset clauses, or if you need assistance in drafting or revising a management agreement, please contact us!
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]]>The post 4 Points to Include in Your Marketing Agency Influencer Agreements appeared first on ARTY LAW.
]]>Here are 4 essential points to address in your marketing agency influencer agreements.
Please note that this blog post does not constitute formal legal advice, but rather legal information. If you have any questions about influencer marketing agreements, or contract drafting in general, get in touch!
As part of your marketing agency influencer agreements, you’ll first want to define precisely the type of content that needs to be delivered, as well as the agreed upon timeline.
This usually includes
As for the timeline, it’s important to take into account any possible delays (e.g. a request for modifications from the client), as well as any obligations stipulated in the agreement between the marketing agency and the client.
As with any other type of marketing, companies are subject to certain laws that dictate what can and cannot be said as part of an advertising campaign. These restrictions should be communicated to the influencer (who can’t know everything) and inserted into the agreement for reference purposes.
For instance, if you’re working on an influencer marketing campaign in the alcoholic beverages sector, it will be essential for the influencer to know about mandatory mentions regarding drinking in moderation, behaviors prohibited by law in advertising, as well as any other information that needs to be know by the influencer to ensure that the content created is not content through which the client breaches the applicable law in its industry.
Generally speaking, it’s always a good idea to remind influencers of what keywords they should be using, where to insert disclosures of the material relationship between them and the companies that hire them, as well as any other advertising law obligations that apply to clients, agencies and influencers alike.
It is crucial to clearly define the rights that the influencer assigns to the marketing agency and the client as part of the campaign. This includes copyright on the content created, as well as image rights (which are two distinct elements)!
As far as copyrights are concerned, it’s important to specify whether the influencer is transferring ownership of the works or granting a license. The terms of the license (including duration, territory, permitted uses and whether or not it is exclusive) must be specified.
Authorizations regarding image rights should also be explicitly mentioned. The influencer (and any other individual featured in the campaign) must consent to the use of his or her image, voice and name in the context of the campaign, specifying in particular the where these elements will be used, and the duration of the authorization.
It will therefore be important to take into account clients’ needs for their campaigns, and to ensure that the clauses in the agreements to be signed with the influencers in question meet those needs.
When defining the termination terms in a marketing agency influencer agreement, it’s essential to think about the various reasons that may justify early termination of the collaboration. These may include the cancellation of a campaign by the client, but also circumstances such as the influencer’s failure to meet contractual obligations, or external events that make performance of the agreement impossible (force majeure).
Influencer agreements often include morality clauses, which allow for the agreement to be terminated immediately if the influencer behaves in a way or makes statements likely to damage the image of the client or the marketing agency. But what exactly is meant by behavior or statements likely to harm the image of the client or the marketing agency? Who is in a position to judge whether this criterion is met? It all comes down to the wording of these clauses! These provisions should therefore not be taken lightly, and should be drafted with care, to avoid any ambiguity in their interpretation and prevent potential conflicts.
Whatever the grounds for termination laid down in the agreement, it is crucial to ensure that the termination terms of the agreement between the marketing agency and the client are aligned with those of the agreement with the influencer, to avoid any inconsistencies or unnecessary liability for the agency.
If you have any questions about marketing agency influencer agreements, or require assistance in drafting or reviewing such agreements, please contact us!
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]]>The post Getting (Legally) Ready for Black Friday & Cyber Monday appeared first on ARTY LAW.
]]>Here are 4 legal issues to keep in mind should your business wish to offer Black Friday and Cyber Monday online deals.
Of course, this blog post constitutes legal information and not legal advice. If you have any additional questions regarding the online sale of products or services, or on how to operate an online business in general, do not hesitate to contact us!
Any online business should have at least two legal documents: terms & conditions and a privacy policy. Appropriately drafting these two documents is especially important as traffic on your website increases on Black Friday and Cyber Monday.
The terms & conditions are essentially the contract between your website users and your business. It can serve to limit your liability in some instances and to outline the prohibited uses of your website which could lead to a user account being deleted.
Privacy policies are mandatory in Quebec for businesses who collect personal information on website users. The policy must disclose the nature of the personal information collected and the purpose for their collection. Personal information can include name, age, ethnicity, location, etc.
Make sure to implement reasonable safety measures to protect your users’ personal information (e.g. Secure Sockets Layer, etc.) and to obtain their consent before sharing it with third-parties. This is mandatory.
Lastly, it is also useful to know where your customers are located and to make sure you comply with the data privacy laws of the territory in which they are located.
You can find more information about terms & conditions and privacy policies in a previous blog post.
If you sell products or services online, you will be subject to consumer protection laws regarding their sale and delivery.
You must provide the customer with a contract of sale containing your business and your customer’s contact information and name, the price, the object of the contract (e.g. sale of X product), information concerning additional costs (e.g. customs duties and shipping costs), the method of delivery, the name of the carrier, and the date of delivery. This information can be displayed in various manners: before the transaction or by sending the customer an email.
The customer will be able to cancel his purchase and will be entitled to a refund within 15 days after the cancellation:
To avoid unwanted purchase cancellations, make sure to deliver your products or services in a timely manner, and to provide your customers with a copy of the contract of sale containing the required information.
Adopting a return & exchange policy is not mandatory, but if you do adopt one, you must make sure to bring it expressly to the consumer’s attention and to present the information in a prominent and comprehensive manner. The consumer must be able to easily retain it and print it.
If your business does not comply with this obligation, the customer will be able to cancel his purchase within7 days after the receipt of the product or service, and you will have to refund the customer within 15 days after the purchase cancellation.
These rules also apply to the contract of sale.
Black Friday and Cyber Monday are notorious for surges in fraudulent activity. To avoid competitors from copying your products, make sure to enforce your intellectual property rights (e.g. registering your trademark for your t-shirt logo).
It is also useful to have your employees sign a non-disclosure agreement (NDA) so that your marketing strategy and other commercial secrets (also called trade secrets) are not leaked.
If you have any additional questions regarding the online sale of products or services, or on how to operate an online business in general, do not hesitate to contact us!
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]]>The post Influencer Marketing Agreement: 5 Elements to Address appeared first on ARTY LAW.
]]>Influencer marketing is increasingly widespread in Canada: influencers, Instagramers, and YouTubers with a mass following are now solicited by businesses to promote their products and services on their online platforms.
However, in order to avoid unpleasant surprises, it is important to negotiate a contract between your business and the influencer who will be promoting your products or services. Here are 5 elements to address in your influencer marketing agreement.
Of course, this blog post constitutes legal information and not legal advice. If you have any additional questions regarding influencer marketing agreements or contract drafting in general, do not hesitate to contact us!
Ask yourself the following questions:
It is important to include the answers to these questions in your agreement, so that the influencer’s obligations regarding the promotion of your products or services are clear.
As well, make sure to use any advertising platform’s features that allow you to indicate a partnership between the influencer and your business as well as the advertising nature of the content. You risk infringing advertising and consumer protection laws if you do otherwise.
A useful influencer marketing agreement may stipulate that your business has the right to use the influencer’s content promoting your products or services, for example, for your advertising campaign. It is up to you to decide how long, on which territory, for which purpose, and on what platform your business can use such content (e.g. your business’s social media, its website, etc.).
It is essential to determine in your agreement that the influencer is prohibited from promoting products similar to those sold by your business during your influencer marketing campaign or shortly before/after your campaign. For example, if you operate a business selling swimsuits, you can prohibit the influencer from promoting other swimsuit brands.
Don’t forget that these restrictions need to be reasonnable and to make sense. If you sell makeup, an influencer who regularly speaks about makeup most likely won’t be able to stop promoting other makeup brands.
Make sure to specify the exclusivity period, or the period during which the influencer is unable to promote products similar those sold by your business (e.g. 2 months, 4 months, etc.).
To protect information concerning your business, such as trade secrets, new products, client lists, and more, it is judicious to include a clause in your agreement obligating the influencer to keep such information confidential.
You can make the influencer pay a reasonable penalty sum for the breach of this obligation.
Finally, it is absolutely essential that you are able to terminate the agreement without prior notice in the event that the influencer’s behaviour no longer suits your brand image.
If the influencer’s behaviour is immoral or scandalous, or if he was accused of fraud or of any other crime which may harm your brand image, it would be best to dissociate your business from this influencer as quickly as possible.
You can also provide for the termination of the contract for any other reason with notice (e.g. 10-day notice, 30-day notice, etc.).
If you have any additional questions regarding influencer marketing agreements or contract drafting in general, do not hesitate to contact us!
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]]>The post Manufacturing Non-Medical Masks: What Is Your Liability? appeared first on ARTY LAW.
]]>Your altruism and cooperative spirit are commendable! However, it is important to be aware of the legal obligations that could arise from selling and manufacturing non-medical masks.
Here are 3 legal elements to keep in mind in order to take the necessary precautions to avoid being held liable as a manufacturer or seller of non-medical masks.
Of course, please take this as legal information and not legal advice. If you have any questions regarding liability flowing from the sale and manufacture of non-medical masks or of product liability in general, send us an email at info@artylaw.ca.
Manufacturers (also known as dealers in the relevant legislation) or sellers of non-medical masks must comply with several labelling and advertising standards set out in the Textile Labelling Act and the Textile Labelling and Advertising Regulations.
In order to sell or advertise consumer textile articles such as non-medical masks, the dealer must apply thereon a label in French and English specifying the textile fibre content of the product as well as the identity of the dealer (name and address).
In addition, dealers are prohibited from representing information that is false, misleading, or that could reasonably be regarded as such, with respect to a textile fibre product such as a non-medical mask. This prohibition applies to both the advertising of the product and its labelling. “False or misleading information” may refer to, for example, a description of the use of the product that could reasonably be misleading as to its actual use. It is therefore essential to specify in your advertisements that the masks sold or manufactured are not intended for medical use.
Manufacturers or sellers of consumer products such as non-medical masks may potentially incur liability by virtue of consumer protection laws in Quebec.
Indeed, the manufacturer of movable goods such as non-medical masks can be held liable for injury caused to a third party (for example, the purchaser of the mask) because of a security defect in the goods. Generally, there is a security defect when the goods do not afford the safety that one is normally entitled to expect.
For example, if the manufacturer of a mask advertises that the mask may be used for medical purposes, or if it is reasonable for the consumer to expect that the mask be for medical use when it is not, the manufacturer could be held liable if the consumer suffers an injury (for example, by contracting COVD-19) after having used the mask for medical purposes.
The defect in design or manufacture of the goods, the poor preservation or presentation of the goods, or even the the lack of sufficient indications as to the risks and dangers the goods involve or as to the means to avoid them can constitute a safety defect.
It is important to note that, despite the above, the manufacturer, distributor or supplier of movable goofs (e.g. non-medical masks) will not be held liable for the injury caused by a safety defect in the goods if he proves that the victim knew or could have known of the defect, or could have foreseen the injury. Nor will he be held liable if he has respected his duty to provide information when he became aware of the existence of this defect.
To avoid such liability, make sure to specify the risks associated with the use of a non-medical mask (e.g. if it does not protect against a particular disease, etc.) before its sale or advertisement so that the consumer is well informed before the purchase.
As well, remember to adhere to the advertising and labelling standards mentioned above.
Finally, you can check whether your insurance provider covers liability incurred from the sale or manufacture of defective consumer products.
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]]>The post Advertising and Dentists: 4 Things to Avoid appeared first on ARTY LAW.
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Of course, please take this as legal information and not legal advice. If you have any questions regarding marketing for dentists and its legal considerations, send us an email at info@artylaw.ca.
Over 2 years ago, the Collège des Médecins reminded its members that the exchange of free services for web visibility was strictly prohibited by their Code of ethics, thus making the use of influencer marketing impossible. This prohibition also exists in the Code of ethics of dentists.
Indeed, dentists must refrain from “granting, in the practice of [their] profession, any advantage, commission or rebate to any person whomsoever”. You’d like to increase your online visibility? Influencer marketing will not be the strategy to go for.
Do you want to demonstrate the quality or value of your services? The last thing you should think of doing is comparing your services to those of a competitor in one of your advertisements.
It is important to keep in mind that the Code of ethics of dentists prohibits any form of comparative advertising. It is not just a question of direct comparison with a competitor. Terms like “cheaper”, “more efficient” and “less complicated” are comparative, even if you only refer to techniques or new technologies. It is therefore essential to pay attention to the language used in your advertisements.
Using testimonials is probably one of the most effective and widely used marketing techniques. Unfortunately, if you are a dentist, you are prohibited from using statements of support or recognition about yourself in advertisements or in any public intervention. Remember that you may be subject to sanctions by the Ordre des dentistes du Québec even if the advertisement was not created by you and you were not consulted during its creation. This applies to all of your ethical obligations regarding advertising.
Finally, if you are a dentist who wishes to advertise promotions in your advertisements, know that certain rules must be observed. Among other things, you must mention the regular price of the service, the promotional price and the expiration date of this promotion. The terms “regular price”, “exceptional price” and “exceptional price ends” must be used. It is also essential that the regular price and the exceptional price be presented using characters of the same size, when visual advertising is involved.
If you have any additional questions you would like to ask us regarding the legal aspects of advertising and the ethical obligations of dentists, do not hesitate to send us an email at info@artylaw.ca.
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]]>The post Pet Influencer Marketing: 4 Legal Elements to Keep in Mind appeared first on ARTY LAW.
]]>We often address the legal side of influencer marketing on this blog, as it has become a very popular way of doing marketing online. However, we’re starting to see the rise of a new kind of influencer: the pet influencer.
Believe or not, there are just as many legal aspects to think of when it comes to your pet’s online presence as there are for regular human influencers.
Here are 4 legal elements you should keep in mind when growing your pet’s brand.
Of course, please take this as legal information and not legal advice. If you have any questions regarding pet influencer marketing and its legal considerations, send us an email at info@artylaw.ca.
If your pet is becoming an influencer, you should be treating written agreements and other business considerations just as importantly as you would if you were an influencer.
If a brand contacts you for a partnership with your pet or if an agent wants to represent your pet, you should put some thought into what goes into these contracts and ideally, take the time to get them reviewed.
We’ve previously published a Legal guide for online influencers as well as a blog post about signing your first management agreement that you might want to look into.
As with regular influencer marketing, there are certain guidelines that absolutely need to be respected when you are posting posts that include branded content.
Ad standards came out last year with disclosure guidelines for sponsored posts. We also published a blog post summarizing them that you may want to take a look at if you’re not familiar with them just yet.
If a contract with a brand requires more than you just shooting a few photos of your pet at home (for instance, if your pet needs to be on set for a campaign), do not forget do put your pet’s well-being above all and to make sure that all third-parties who will be participating in such a campaign also understand your pet’s needs.
If you know your pet needs frequent playtime, a lot of rest, etc, you might want to make sure your pet will be able to get these much needed breaks by including relevant clauses in your agreement with the brand, especially if this is the first time they work with a pet influencer for commercial purposes.
As pets and pet accounts are becoming more and more popular, it’s easy to lose track of your content. Pet images are heavily shared and reshared on social media, You should therefore make sure you monitor the use of your photos, videos and other types of content frequently to be able to stop 1) unauthorized use of your content and 2) to ensure that all of your pet’s content on the web can be traced back to your pet’s accounts.
Keep in mind that intellectual property laws still apply, even if we’re talking about your cute pet’s photos. If your pet influencer happens to be in some content you did not create, always make sure you have written permission to use it. This of course also applies to any brand who wishes to use content you’ve created on their social media accounts or as part of a bigger campaign.
If you have any additional questions you would like to ask us regarding pet influencer marketing, do not hesitate to send us an email at info@artylaw.ca or click on the link below to schedule a consultation.
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]]>The post Does Your Business Name Really Belong to You? appeared first on ARTY LAW.
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Of course, please take this as legal information and not legal advice. If you have any questions regarding trademarks, send me an email at info@artylaw.ca.
The first thing that needs to be clarified is that to properly answer this question, we need to distinguish legal names and trademarks.
Your legal name allows you to identify yourself with the government. Your name might be a series of words, but it could also be a series of numbers (if you decide to get a numbered entity).
A trademark is a word (or set of words, images, etc) used in association with your products or services. Trademarks allow you to distinguish yourself from your competitors. To put it simply: it’s your brand. It’s how your customers recognize you.
As a business, you might decide to advertise yourself to your customers by using a name that has nothing to do with your legal name (if you have a numbered company, for instance), but you could also decide to use your legal name as a brand. The two do not have to be identical, but they certainly can be.
This is where things get interesting.
Let’s say you want to call your business XYZ inc. You can simply incorporate under XYZ inc, therefore making sure no one else has the same legal name in Quebec (or on whatever level you decide to incorporate).
But what’s stopping a numbered company from using XYZ as a brand? Nothing.
Using a particular legal name only stops other entities from registering under that same legal name at a specific governmental level. It has nothing to do with branding and trademarks.
If you own a business, you probably already understand the importance of branding. Imagine the following scenarios:
You do not want to end up in a situation where you cannot use your name (or where you get sued for using a name) simply because you did not use the right tools to make sure you had exclusivity on it.
The only way to ensure you have exclusivity over your name in Canada in relation to your products or services is to get your trademarks registered. Doing so will allow you to have exclusivity for 10 years (renewable) and most importantly, to have peace of mind. Normally, a comprehensive research would take place before the start of the registration process to make sure no one else is using your trademark or a similarly confusing one.
For more information about trademarks, you can take a look at this post I’ve written about registration as well as this one about the upcoming modifications to the Trademarks Act. If you need assistance with trademarks registration or legal advice regarding your trademarks, don’t hesitate to send me an email at info@artylaw.ca. You can also click the link below to learn more about our services!
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]]>The post 4 Things to Know about the Upcoming Amendments to the Trademarks Act appeared first on ARTY LAW.
]]>Because they’re so important, I couldn’t possibly avoid talking about the upcoming amendments to the Trademarks Act. Those amendments will come into effect on June 17, 2019 and will impact various aspects of the registrationprocess. I therefore thought it would be useful to summarize some of the most important modifications to the Act.
Of course, please take this as legal information and not legal advice. If you have any questions regarding trademarks, send me an email at info@artylaw.ca.
Yes, unfortunately, starting June 17, 2019, filing your trademarks will be more expensive. Right now, filing fees are 250$, regardless of how many classes you decide to file for. The amendments will bring those fees up to 330$ for the first class of goods/services and 100$ per additional class. If you’ve been thinking about registration for a while now, it might be a good time for you to file for registration before June 17, 2019.
Registered trademarks are currently protected for 15 years after which the registration can be renewed. The amendments will bring that time period down to 10 years. Renewal fees will also be going up. Right now, renewal fees are 350$ (when filed electronically). The amendments will be bringing those fees up to 400$ for the first class of goods/services and 125$ for additional classes.
Although difficult to get registered, starting June 17, 2019, you will be able to register non-traditional marks. This may include colors, tastes, textures, scents, and more. If you’ve been working on a distinctive element in your business that you couldn’t protect before, those amendments are your chance to do so!
The Madrid Protocol allows entities to get their trademarks registered all over the world through a single application and a one-time fee. Canada’s absence from the Madrid Protocol has made it very complicated and expensive for businesses to protect their trademarks in foreign countries. Starting June 17, 2019, Canada will be adhering to the Madrid Protocol, therefore allowing companies to expand their portfolio worldwide in a more efficient (and cost-effective) way.
There are many other amendments to the Trademarks Act, so please do not hesitate to reach out if you have any questions, if you need assistance with trademarks registration or legal advice regarding your trademarks by sending me an email at info@artylaw.ca. You can also click the link
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