While s. 91 of the Constitution Act, 1867 gives the Parliament of Canada jurisdiction over copyright and patent matters, it is silent with respect to trademarks.

[4] However, the Judicial Committee of the Privy Council and the Supreme Court of Canada have both suggested in their jurisprudence that the Trade-marks Act is a valid exercise of the federal trade and commerce power.

[9] Ritvik denied any breach under the Act or at common law and counterclaimed, seeking a declaration that it was entitled to continue to make, offer for sale and sell in Canada its blocks and related parts.

Writing for the majority, Sexton JA did not comment on the questions of confusion and the elements of the tort of passing off, but did find that the doctrine of functionality applied to trade-marks, whether registered or not.

[15] It recognized that allowing the claim created a concern with "overextending monopoly rights on the products themselves and impeding competition, in respect of wares sharing the same technical characteristics.

It found that three elements were required to establish the tort:[17] In this case, K's claim was bound to fail because it would not have met the first condition of the action.