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Over the course of our previous bulletins, we have examined branding considerations for prescription drugs,1 over-the-counter drugs,2 and medical devices.3 This bulletin concludes our multi-part examination of trademark considerations across life sciences product categories by addressing natural health products ("NHPs") – a product category that presents its own unique branding challenges and regulatory considerations.
Regulations Affecting NHP Brand Names
NHPs are defined under the Natural Health Products Regulations4 ("NHP Regulations") as substances or combinations of substances that meet specific compositional and purpose criteria. To be an NHP, a product must be: (1) a substance set out in Schedule 15 of the NHP Regulations; (2) a combination of substances in which all medicinal ingredients are listed in Schedule 1 of the NHP Regulations; (3) a homeopathic medicine; or (4) a traditional medicine. Further, the product must be manufactured, sold, or represented for use in one of the following purposes: (a) diagnosing, treating, mitigating or preventing a disease, disorder, or abnormal physical state or its symptoms in humans; (b) restoring or correcting organic functions in humans; or (c) modifying organic functions in humans.6 7 Examples of NHPs provided by Health Canada include herbal remedies, certain sunscreens, and vitamins and minerals.8
In general, NHPs cannot be sold in Canada without a product licence from Health Canada.9 An application for a product licence must contain (among other things) the proposed brand name10 of the NHP.11
Unlike prescription drugs, for which Health Canada maintains published guidelines, there are no publicly available brand name assessment guidelines specific to NHPs. That said, NHPs, which fall under the definition of "drug"12 under the Food and Drugs Act, must not be labelled, packaged, treated, processed, sold, or advertised "in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety".13 This statutory prohibition serves as the primary regulatory constraint on NHP brand names.
Once a product licence is issued, the brand name of the NHP must be clearly and prominently displayed as part of the product label pursuant to the NHP Regulations.14
Language Requirements in Quebec
Although the NHP Regulations do not require the brand name of NHPs to be displayed in both English and French,15 the brand name of an NHP is subject to the official language requirements if the product is marketed in the Province of Quebec.
Under the Charter of the French Language, every inscription on a product or its label – including brand names – must be displayed in French.16 There is a limited exception to this requirement: a registered trademark may appear in a language other than French if no corresponding French version exists in the Canadian Trademarks Register. This exception does not apply to any generic term or product description in a registered trademark, which must appear in French if it is inscribed on the product or the product label.17
As such, companies wishing to market an NHP in Quebec may want to consider: (1) whether to register the NHP brand name as a trademark in Canada (once registered, the name may qualify for the above exception to the French language requirement); (2) whether the brand name contains any generic term or product description that would require French translation even if the mark is registered; and (3) whether a French translation would be appropriate in the Quebecois linguistic and cultural context. To simplify compliance, companies may select brand names that consist of only non-descriptive or invented terms, which, if registered with no French equivalent in the Canadian Trademarks Register, may be used consistently across all of Canada without French translation requirements.
Building Distinctive, Registrable Marks in a Saturated Market
The NHP market is a highly saturated market, with a large number of products sold under ostensibly similar brands. Developing a brand strategy in a crowded market poses some unique challenges.
Trademarks that are confusingly similar18 to another registered trademark cannot be registered.19 Moreover, using a trademark – even without registration – that is confusing with another existing trademark may expose a company to legal liabilities such as trademark infringement20 and passing off.21
In a crowded market where numerous parties use similar words or elements in their trademarks, courts will grant a narrower scope of protection to each trademark. In other words, in a saturated market, small differences between trademarks may be sufficient to avoid confusion.22 This means that whilst trademark owners face less risk of infringing others' marks when entering crowded fields, they also receive weaker protection against competitors adopting similar marks.
By contrast, when one entity owns multiple trademarks sharing similar features (such as a common prefix or suffix), a third party's use of a mark incorporating that shared element is more likely to be found confusing with the family as a whole. Trademarks belonging to a "family of marks" receive broader protection because the shared element of these marks becomes publicly associated with a single source. To establish family mark protection, a party must demonstrate actual use of several trademarks bearing the common feature that defines the family.23 This strategy can be valuable for companies developing NHP product portfolios, as it allows a common brand element to serve as an umbrella identifier whilst individual products target, for example, different health concerns or consumer needs. Establishing a family of trademarks can be challenging, and we therefore suggest professional advice be sought.
As we have emphasized throughout this bulletin series, conducting a trademark clearance search is a critical step in ensuring that a trademark is available for use and registration in Canada – particularly in crowded markets where confusion analyses can be complex. Engaging a trademark professional to interpret the results help reduce the risk of overlooking potential issues. While choosing invented, coined, or arbitrary words (or distinctive designs) can help lessen the need for repeated searches and/or lower the likelihood of confusion, these options may not always align with a company's business or marketing objectives.
Summary and Conclusion
In summary, when choosing a name for an NHP, the following questions may be worth considering:
- Does the name suggest anything false, misleading, or deceptive or is such name likely to create an erroneous impression regarding character, value, quantity, composition, merit, or safety of the NHP?
- If marketing the NHP in Quebec, does the brand name need to be in French and if so, is the French version of the brand name appropriate in the Quebecois linguistic and cultural context?
- Has the name been searched for trademark clearance, and have the results been interpreted and analyzed by a trademark expert?
- Will the brand form part of a product line, and if so, is it consistent with the trademark strategy for the entire product line as whole?
As a frequent advisor for NHP brands, McMillan's Intellectual Property Group has the experience and expertise to assist companies navigate the highly competitive NHP market. We can assist with trademark clearance searches, regulatory naming strategies, and coordinated brand protection strategies across multiple jurisdictions.
Footnotes
1 Yue Fei, Aki Kamoshida, Pablo Tseng and Hugo Mak, "Naming Prescription Drugs: Navigating Regulatory and Trademark Challenges", McMillan LLP, (6 August 2025).
2 Yue Fei, Aki Kamoshida, Kaleigh Zimmerman, Pablo Tseng and Oana Mirel, "OTC Brand Names: Balancing Consumer Appeal and Legal Risk", McMillan LLP, (29 September 2025).
3 Yue Fei, Aki Kamoshida, Pablo Tseng, Janine MacNeil and Karel Peters, "Branding Medical Devices: Balancing Brand Protection and Regulation", McMillan LLP, (28 November 2025),
4 Natural Health Products Regulations, SOR/2003-196.
5 Specifically, Schedule 1 of the NHP Regulations lists (1) a plant or a plant material, an alga, a bacterium, a fungus or a non-human animal material; (2) an extract or isolate of a substance described in item 1, the primary molecular structure of which is identical to that which it had prior to its extraction or isolation; (3) certain vitamins; (4) an amino acid; (5) an essential fatty acid; (6) a synthetic duplicate of a substance described in any of the items 2 to 5; (7) a mineral; and (8) a probiotic.
6 Natural Health Products Regulations, SOR/2003-196, s 1(1).
7 However, products containing any substance listed in Schedule 2 of the NHP Regulations are excluded from the NHP definition, even if they otherwise meet the criteria.
8 See Health Canada,Natural health product regulation in Canada: Overview, (Ottawa, Health Canada, 17 May 2024).
9 Natural Health Products Regulations, SOR/2003-196, s 4.
10 Natural Health Products Regulations, SOR/2003-196, defines "brand name" as a name in English or French that is used to distinguish an NHP, and under which an NHP is sold or advertised.
11 Natural Health Products Regulations, SOR/2003-196, s 5(e).
12 Food and Drugs Act, RSC 1985, c F-27, s 2.
13 Food and Drugs Act, RSC 1985, c F-27, s 9.
14 Natural Health Products Regulations, SOR/2003-196, Part 5.
15 However, for investigational NHPs used in clinical trials, s 75of the NHP Regulations requires each investigational NHP bear a label that sets out (among other items) the brand name or code of the NHP in both official languages.
16 Charter of the French Language, CQLR c C-11, s 51.
17 Charter of the French Language, CQLR c C-11, s 51.1.
[18] Trademarks Act, RSC 1985, c T-13, s 6(5) sets
out the statutorily defined factors affecting the confusion
analysis.
19 Trademarks Act, RSC 1985, c T-13, s 12(1)(d).
20 Trademarks Act, RSC 1985, c T-13, s 20.
21 Trademarks Act, RSC 1985, c T-13, s 7.
22 General Motors Corp. v. Bellows, 1949 CanLII 47 (SCC), [1949] SCR 678, at para 28.
23 Arterra Wines Canada, Inc. v. Diageo North America, Inc., 2020 FC 508, at para 41.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
