The offence of forging trademarks is outlined in section 407 of the Criminal Code.
A person commits the offence of forging trademarks when they, intending to deceive or defraud, make, or reproduce a trademark or a mark closely resembling a trademark without the consent of the trademark’s proprietor, or when they falsify a genuine trademark.
Person A makes cheap t-shirts and puts the Ralph Lauren polo player embroidery on the front despite not having the consent of the proprietor of the Ralph Lauren trademark.
Person B creates shoes with a slightly slanted checkmark on them to convince buyers that he is selling Nike shoes. Person B falsely thinks that he will not get in trouble for this because he is not using Nike’s exact trademark, but the mark is similar enough that it is likely to be confused for Nike’s trademark, so he has still completed the offence of forging trademarks.
Offence Specific Defence(s)
Where the person has the consent of the proprietor to make or reproduce a trademark or to use a similar trademark, they have not completed the offence of forging trademarks.
Where the person has created a trademark that does not resemble an existing trademark or could not be confused for another trademark, they have not completed the offence of forging trademarks.
Not a Trademark
Where the person has made or reproduced a mark that is not a trademark, they have not completed the offence of forging trademarks.