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PATENTS
unconditional sales can equal anticipation
Sales without the benefit of a confidentiality agreement were held to invalidate the plaintiff’s patent in Canwell Enviro-Industries et al. v. Baker Petrolite et al. The Federal Court of Appeal held that the person attacking the patent need not show that the purchaser did or would have reverse engineered the patented invention. Anticipation can be found to exist simply on the basis that a person skilled in the art would have been able to reverse engineer the invention
PASSING OFF
secondary meaning of LEGO bricks indicia
In Kirkbi and LEGO Canada v. Ritvik Holdings, the Federal Court Trial Division found that confusion had arisen as a result of the defendant’s sales of building bricks that copied the “look” of LEGO bricks which had been found to be distinctive. Nevertheless, the passing off action failed because the Court found that Ritvik had not intentionally adopted the LEGO look in order to confuse consumers but had merely adopted functional features. An appeal has been filed.
OFFICIAL MARKS
statutory creatures versus public authorities
The Association of Architectural Technologists of Ontario may have been created by statute but that is not sufficient to make it a public authority – governmental control in the form of some ongoing government supervision is necessary. In Ontario Association of Architects v. Association of Architectural Technologists of Ontario, the Trial Judge held that the Registrar had committed no reviewable error in concluding that AATO is a public authority.
COPYRIGHT IN LEGAL PUBLICATIONS
creative spark requirement snuffed out
A group of publishers, the creators of various legal materials, sued The
Law Society of Upper Canada for copyright infringement. An appeal from
the Federal Court Trial Division’s decision in CCH Canada et al. v. The
Law Society of Upper Canada has been partially successful. The Court of Appeal rejected the Trial Judge’s adoption of the United States’ higher standard of originality, stating that NAFTA does not result in U.S. case
law altering Canadian copyright law. The Law Society of Upper Canada
raised several defences, including that the copies were insubstantial takings, fair dealing applied, implied consent existed, delay, laches, acquiescence, and public policy concerns. |
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Board
Daniel R.
Bereskin, QC
Editor-in-Chief
Michael E. Charles
Practice
Jonathan G. Colombo
Opposition Board Decisions
Terry Edwards
Foreign Trade Mark Developments
David Langton
Foreign Patent & Design Developments
Robert MacFarlane
Practice
Philip Mendes
da Costa
Patents
Mark L. Robbins
Practice
Cynthia Rowden
Trade Marks
Jill Jarvis-Tonus
Copyright
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