Applicability to subject matter A statutory action under section 7 of the Trade-marks Act requires that the subject matter in question be a "trade-mark" as defined in section 2 of the Trade-marks Act. A "trade-mark" is defined in the Act as: (a) a mark that is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others, (b) a certification mark, (c) a distinguishing guise, or (d) a proposed trade-mark; While trademarks can be protected whether they are registered or unregistered, subject matter that does not fall within the definition of "trade-mark" in the Act cannot be protected by the statute. Thus, certain distinguishing features such as sounds, scents, and holograms that may not traditionally fall under the definition of "trade-mark" in Canadian law can still be protected through a common law passing off claim provided the elements of the tort are satisfied. Jurisdiction A common law passing off claim, as a matter relating to property and civil rights, can only be brought in a provincial superior court. As such, a successful common law action is only enforceable within the province where the claim was heard. An action under section 7 of the Trade-marks Act can be brought in either Federal Court or in a provincial superior court due to the concurrent jurisdiction granted in section 20(2) of the Federal Courts Act. A judgment rendered by the Federal Court is enforceable throughout Canada. Effect of trademark registration Registration under the Trade-marks Act affirms, recognizes and extends registrants' positive rights to use the registered marks and provides registrants with an absolute defence to a passing off cause of action. It was held in Molson Canada v Oland Brewery Ltd that a plaintiff's only recourse against a registered mark is to attack the validity of the registration. Critics of the Ontario Court of Appeal's interpretation of the Act in Molson argue that giving priority to registration strays from a fundamental precept of trade-mark law that owners' rights derive from use, not registration. However, even under the Act it is not correct to say that registration makes a person the owner of a trademark. Registration procedures require that at the time of registration the applicant already own the rights to use the unregistered mark. The administrative hurdles for a