Canadian-inspired branding: what’s it all mean, eh?

“Maple washing” and “maple glazing” are buzzwords gaining traction online and in the news, reflecting a rise in Canadian-inspired marketing of a wide variety of goods and services across the country.

While advertising campaigns that harness Canadian spirit can be particularly effective, so-called maple glazing can lead to some sticky legal issues if it is not done carefully.

Both the Competition Bureau (the “Bureau”) and Ad Standards Canada have published guidance and advisories about the use of Canadian-inspired representations and depictions in marketing goods and services.

This article explains how brand owners may approach their next Canadian-inspired marketing strategy to ensure compliance with Canadian regulatory standards, including the Competition Act, the Bureau’s guidance, the Canadian Code of Advertising Standards and the Canadian Food Inspection Agency guidelines.

“Product of Canada” and “Made in Canada” claims

A common strategy for leveraging Canadian sentiment is to proudly declare that a product is made in Canada or made by Canadians.

Many consumers believe claims like “Product of Canada” and “Made in Canada” convey a similar idea as to the content or origin of the product. However, there is a clear regulatory distinction between these two types of claims.

A “Product of Canada” claim has a higher threshold of nearly 100% Canadian content. In fact, the Bureau considers a “Product of Canada” claim to mean that the product consists of at least 98% Canadian content.

A “Made in Canada” claim has a lower threshold of 51% Canadian content. This claim also requires further disclaimers or the addition of appropriate qualifying statements, such as “Made in Canada with domestic and imported parts”.

In both cases, the use of these claims requires the “last substantial transformation of the product” (i.e., its assembly, production or processing) to have occurred in Canada.

If such branding tools are not wielded carefully, brand owners may be exposed to both regulatory risks, civil liabilities, or reputational harm. For example, the improper use of Canadian claims could attract complaints from consumers or competitors that could result in increased regulatory scrutiny or even penalties, if they are found to be engaging in deceptive marketing practices. Brand owners should therefore use these claims carefully to ensure compliance with the relevant Canadian laws and regulations so as to not mislead consumers.

The use of Canadian imagery

While the claims “Product of Canada” and “Made in Canada” can be powerful marketing tools, so too is the use of Canadian imagery, such as the 11-point maple leaf or the Canadian National Flag.

The commercial use of these official Canadian symbols is governed by federal law. The 11-point maple leaf and the Canadian National Flag are protected against unauthorized use for commercial purposes under paragraphs 9(1)(i) and 9(1)(e) of the Trademarks Act. Therefore, brand owners looking to use these symbols in a commercial context, such as on product packaging or in marketing and advertisements, should seek consent from the Department of Canadian Heritage, as described on the Government of Canada’s website.

The registration of trademarks that incorporate these symbols is also regulated. In particular, the Canadian Trademarks Office requires applicants for such marks to disclaim the exclusive use of these symbols apart from the applied-for trademarks in their entireties (so those applicants cannot attempt to prevent anyone else from using these symbols). For trademarks that incorporate the Canadian National Flag, the Trademarks Office requires applicants to obtain permission to register such marks from the Department of Canadian Heritage (Trademarks Examination Manual, section 4.7.3).

The use of such Canadian symbols may also raise questions as to where the associated goods or services originate. The Trademarks Office considers goods and services to “originate” from a geographic location if they are manufactured, produced, grown, assembled, designed, provided or sold there, or if the main component or ingredient is made in that geographic location. If the associated goods and services do not so “originate” from Canada, the Trademarks Office could deem the trademark deceptively misdescriptive of the goods’ or services’ place of origin, and therefore unregistrable.

While the use of the 11-point maple leaf or the Canadian National Flag are not express claims of “Canadian-ness”, they still may lead consumers into believing that the associated goods are of Canadian content or origin, which, if not the case, could result in allegations of false or misleading advertising under the Competition Act and the Food and Drugs Act, among other authorities. Thus, the use of these protected Canadian symbols also requires a careful and contextual approach to ensure compliance with the relevant Canadian laws and regulations.

Canadian imagery can go beyond the 11-point maple leaf and the Canadian National Flag, such as famous landmarks or other symbols. While the use of such imagery may not be regulated in the same manner as the 11-point maple leaf or the Canadian National flag, brand owners and their marketing teams should take care to ensure that they are not infringing on others’ exclusive rights in and to such imagery. Additionally, to the extent that such symbols suggest that the associated goods or services originate from Canada or from a specific geographic location within Canada, those “origin” claims must be true and not misleading.

Key takeaways

1. Claims as to the origin or providence of a good or service, such as “Product of Canada” and “Made in Canada”, must comply with the Bureau’s guidance. Brand owners could potentially face regulatory, civil or even reputational risks if they engage in deceptive marketing practices.
2. Brand owners should not exaggerate their “Canadian” connection with respect to their goods or services, or the origins of their brands.
3. If Canadian imagery is used in marketing or advertising materials, brand owners should consider whether consent is required to use the imagery.
4. It is critical that brand owners apply a contextual approach in assessing how their marketing or advertising materials may influence consumers’ perceptions. Brand owners’ advertisements must be accurate and not mislead consumers, and any claims therein must be substantiated.