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Highlights
INTELLECTUAL PROPERTY
Comparing Quality Control Provisions in Trade-mark and
Franchise Licensing
Leonard H. Polsky
All franchises include trade-mark
licences. Under the Trade-marks Act, effective trade-mark licensing
involves quality controls. Under most franchise agreements, there are also
control provisions. Canada's franchise legislation defines a franchise with
reference to certain elements, including controls. Leonard Polsky compares and
contrasts the control provisions in trade-mark and franchise licensing and
reviews recent cases that highlight their
differences and that may be useful in
structuring IP licences to avoid the franchise definitions.
LITIGATION
A Clause Too Far: Class Action Waivers and the Right of
Association
David Sterns, Sam Hall
As franchisors seek new ways to
avoid the "winner-take-all" stakes of class action litigation, some have
introduced provisions into their franchise agreements that purport to limit the
right of their franchisees to sue in a multi-plaintiff or class proceeding. As
David Sterns and Sam Hall argue, these waivers have far-reaching implications
and could be construed as an attempt to interfere with franchisees' rights under
Ontario franchise legislation.
LITIGATION
Cross-country Update: the Duty of Good Faith and
Fair Dealing
Susan E. Friedman, Pablo Guzman, Wendy-Anne Berkenbosch
The duty of good faith and fair
dealing in the performance of obligations undertaken in and enforcement of a
franchise agreement seems to apply
in every
province, whether pursuant to common law, legislation or code. However, as Susan
Friedman, Pablo Guzman and Wendy-Anne Berkenbosch explain, a review of recent
case law suggests that the statutory duty has not been the tool of significant
judicial intervention that some practitioners hoped, and others feared, it would
be.
LEGISLATION
The Compensatory Contribution for Municipal Curb Side
Recycling Services in Quebec
Pascale Cloutier
The implementation in Quebec of
certain provisions of law that provide for a compensatory contribution program
for municipal curb side recycling services, expected in early 2007, will have an
important monetary impact on franchisors as they are specifically targeted as
contributors for the containers and packaging identified with their brands and
all containers or packaging added by the franchisees at the retail outlets.
Pascale Cloutier reviews the application of these provisions.
Checklist
This feature will regularly examine and report on recent
developments affecting franchising and distribution., Lawrence M. Weinberg
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Board
Jean H. Gagnon
Editor-in-Chief
Jean H. Gagnon
Pascale Coutier
Miller Thomson Pouliot LLP
Markus Cohen, QC
Markus Cohen Law Office
Frédéric P. Gilbert
Fasken Martineau DuMoulin LLP
Ellery C. Lew
Witten LLP
Leonard H. Polsky
Gowling Lafleur Henderson LLP
John L. Rogers
Davis & Company LLP
Peter V. Snell
Alexander Holburn Beaudin & Lang LLP
David Sterns
Sotos LLP
Lawrence M. Weinberg
Cassels Brock & Blackwell LLP |