The viral success of Ontario Premier Doug Ford’s "Canada Is Not For Sale" hat has sparked an unexpected legal battle between the Ottawa-based company behind the merchandise and a British Columbia retailer. Jackpine Dynamic Branding Inc., the creator of the patriotic caps, recently sent a cease-and-desist letter to Victoria’s Cutouts Canada over alleged trademark infringement, despite Jackpine’s trademark application remaining pending.
The "Canada Is Not For Sale" slogan gained prominence in January 2025 when Premier Ford wore a navy-blue cap embroidered with the phrase during a high-profile meeting with Prime Minister Justin Trudeau and other provincial leaders. The meeting addressed concerns about potential U.S. tariffs and remarks by U.S. President Donald Trump suggesting Canada could become the "51st state."
Ford’s decision to wear the hat—a product of Jackpine Dynamic Branding, founded by Ottawa entrepreneurs Liam Mooney and Emma Cochrane—transformed the accessory into a national symbol overnight. Jackpine’s website (strongandfreehat.ca) saw an unprecedented surge in orders, with products ranging from $60 snapback caps to $115 hoodies selling out within hours of Ford’s appearance.
A Formal Legal Notice
On February 19, 2025, Cutouts Canada—a Victoria-based print-on-demand service specializing in customizable apparel—received a legal notice from Jackpine’s lawyers. The letter alleged that Cutouts Canada’s products violated Jackpine’s pending trademark for "Canada Is Not For Sale" by selling items featuring a Canadian map with the phrase "Not For Sale" beneath it.
Legal expert Edward Peghin, Managing Lawyer at Pace Law Firm in Toronto, ON, Canada, notes that "a pending application does not grant exclusive rights until registration is complete. However, under common law, Jackpine may still argue “passing off” if they can establish goodwill, deception, and damage."
What is a Cease-and-Desist Letter?
A cease-and-desist letter is a formal warning rather than a legally binding order. Its effectiveness depends on the sender’s ability to convince the recipient that litigation is imminent and winnable.
'Confusingly Similar' Test
The case raises questions about how courts assess "confusingly similar" designs. While Cutouts Canada’s map graphic differs from Jackpine’s text-only caps, both play on nationalist sentiment amid U.S.-Canada tensions.
"Both companies sell apparel: one is on hats, the other on shirts," said Peghin. "Although different markets, both are apparel. The visual presentation (a map vs. a phrase alone) is a factor when assessing confusion."
Peghin added, "Jackpine may have a real claim, but enforceability depends on whether the public would associate the "Not For Sale" description on a map of Canada with their brand. Since the claim was dropped after minor website changes, the claim could be weak, at best."
"A misrepresentation claim is more likely if consumers believe Cutouts Canada’s merchandise is affiliated with Jackpine," he suggested.
Generic vs. Distinctive
Generic trademarks include terms like "Clothing Store" (describing the business type) or "Electronics Outlet" (naming products sold), which lack protectability, while distinctive trademarks like Walmart® (arbitrary name), Target’s bullseye logo® (symbolic design), or Best Buy® (descriptive but acquired distinctiveness through branding) uniquely identify retailers and qualify for legal protection.
“Not For Sale” is generic and lacks distinctiveness when used alone. [They] could have a fair use argument that "Not For Sale" is being used descriptively rather than as a trademark, said Peghin.
Another consideration is the political expression argument. He noted: "Given the political nature of the phrase, there could be an argument under freedom of expression."
Lessons for Brands
-
Proactive Trademark Registration: Companies should register slogans and designs early, significantly when leveraging viral moments. Jackpine’s pending application, filed shortly after Ford’s hat debut, exemplifies this strategy.
-
Clear Documentation: To strengthen trademark claims and maintain records of design creation dates, sales data, and marketing efforts. Jackpine’s letter highlighted media coverage and sales spikes as proof of brand recognition.
-
Responsive Adjustments: As Cutouts Canada demonstrated, promptly modifying disputed content can resolve conflicts without litigation. However, businesses should consult legal counsel before making changes to avoid inadvertently admitting fault.
