E-TIPS

On March 20, 2007, Justice Roger Hughes of the Federal Court of Canada released an important decision involving five applications for judicial review (four regarding the medicine ramipril and one regarding the medicine desmopressin). The decision may be the first to apply and elaborate on the reasons for judgment in the Supreme Court of Canada case of AstraZeneca Canada Inc v Canada (Minister of Health), [2006] 2 SCR 560 (noted in a previous issue of E-TIPS®, November 8, 2006, Vol 5 No 10, "Statutory Freeze Period Sought by Innovator Drug Company Under NOC Regulations Denied by Supreme Court of Canada").

Single letter marks have generally been thought to afford a limited degree of protection on the assumption that it would be difficult to develop goodwill and consumer recognition in relation to them. However, recent trade-mark litigation in the Federal Court of Canada involving automotive brands has proven to be the exception to that rule.

Several American technology companies including Microsoft and Google are seeking regulatory approval from the Federal Communications Commission (FCC) to offer high-speed Internet service over unused TV airwaves. However, US television broadcasters are mounting significant resistance to this proposal, claiming that this service could interfere with existing TV signals.

On March 13, 2007, entertainment giant Viacom Inc (Viacom), the owner of MTV, VH1, Comedy Central and other cable networks, filed a $1 billion copyright lawsuit against the video-sharing web site YouTube and its corporate owner, Google Inc (Google). In addition to damages, the lawsuit seeks an injunction prohibiting Google and YouTube from further copyright infringement. Viacom alleges that almost 160,000 unauthorized clips of its programming have been available on YouTube and that the clips have been viewed more than 1.5 billion times.

As previously reported, the US Federal Trade Commission (FTC) and Department of Justice (DOJ) have been at odds over the legality of patent settlement agreements (see E-TIPS®, "Questions Remain Over the Legality of Patent Settlement Agreements", Vol 5, No 5, August 30, 2006). Under a patent settlement agreement of the type at issue, a branded manufacturer pays a generic manufacturer to delay the market entry of a lower priced generic.

The Copyright Board Canada (Board) has issued a decision regarding the downloading of music from online music services in Canada.

As reported in the National Post recently, CanWest Mediaworks Inc, the owner of the National Post (CanWest), has launched an action in the Federal Court of Canada for an order compelling the federal Minister of Health and the Attorney General to enforce the existing rules against direct-to-consumer advertising (DTCA) in pharmaceuticals.

The Federal Court of Canada has dismissed the motion of Apotex Inc (Apotex) for judicial review of the Regulations Amending the Food and Drug Regulations (Data Protection) (Data Protection Regulations) (Apotex Inc v Canada (Governor in Council), 2007 FC 232, Court File No T-2047-06). For more information regarding the application, see E-TIPS®, "Canadian Generic Pharmaceutical Association Challenges the Regulations Amending the Food and Drug Regulations (Data Protection)" Vol 5, No 12, December 6, 2006.

The Federal government has introduced Bill C-47, the Olympic and Paralympic Marks Act to provide additional intellectual property protection for Olympic trade-marks and symbols associated with the Vancouver 2010 Olympic Winter Games (2010 Games).

In the recent case of In re: Jason Reynoso (No 04-17190), the US Court of Appeals for the Ninth Circuit (Court) upheld a decision of the Ninth Circuit Bankruptcy Appellate Panel, and found that a legal software provider participated in the unauthorized practice of law.

At the recent annual media conference of the American Association of Advertising Agencies (AAAA) in Las Vegas, it was reported that the growing trend of web-based collaboration is encouraging leading brand name owners to engage with customers to the point that the customers "truly own [our] brands and our brand messages".

Ontario's Privacy Commissioner, Ann Cavoukian, has called on the Ontario Government to take legislative action against identity theft. In issuing this challenge, the Commissioner's statement was apparently prompted by an earlier call by the Ontario Minister of Government Services for legislative action by the federal government to require banks and retailers to notify customers when their data has been compromised.

Richard Thomas, the UK Information Commissioner, recently gave the keynote address at the International Association of Privacy Professionals in Washington, and called on the international community to achieve a more harmonized and consistent approach to privacy law.

On January 23, 2007, the Minister of Health published a Draft Guidance Document (Guidance Document) on the Patented Medicines (Notice of Compliance) Regulations. When finalized, it will provide assistance to industry and health care professionals on how to comply with governing statutes and regulations, but will not have the force of law. The contents were developed in order to clarify the amendments to the Patented Medicine (Notice of Compliance) Regulations published in the Canada Gazette II on October 18, 2006.

A US House of Representatives Judiciary Subcommittee recently held hearings ("American Innovation at Risk: The Case for Patent Reform") to examine intellectual property laws and consider fundamental changes to the way that patents are awarded. The Subcommittee heard the testimony of four witnesses who criticized the existing patent system for awarding too many patents of poor quality, in that the inventions were not particularly novel or that they were somewhat obvious. The speakers asserted that poor quality patents lead to more litigation and stifle innovation.

The Federal Court of Canada has found that the Personal Information Protection and Electronic Documents Act (PIPEDA) gives the Privacy Commissioner jurisdiction to investigate complaints relating to transborder flows of personal information.

The Attorney General of Canada has failed in an attempt to strike the Canadian Generic Pharmaceutical Association's (CGPA) application for judicial review of the data protection provisions of the Food and Drug Regulations, CRC c 870 as amended by the Regulations Amending the Food and Drug Regulations (New Regulations). (For more information regarding the application, see E-TIPS®, "Canadian Generic Pharmaceutical Association Challenges the Regulations Amending the Food and Drug Regulations (Data Protection)" Vol 5, No 12, December 6, 2006).

As a result of a recent Federal Court of Appeal decision (Her Majesty The Queen v Dawn's Place Ltd, 2006 FCA 349), federal goods and services tax (GST) must be collected on subscription or access fees charged to foreigners via Canadian web sites. Canadian web site owners are therefore now facing an obligation to collect GST on membership subscriptions to their web sites from residents and non-residents alike.

Two bills recently introduced in the US Congress could significantly affect the research, development, and commercialization of biotechnology products. First, a trio of legislators introduced the Access to Life-Saving Medicine Act, a bill that would authorize the Food & Drug Administration (FDA) to approve biogeneric drugs. Currently, the FDA has no express statutory authority to do so.

The Privacy Commissioner of Canada has found that it was appropriate, and not a breach of the Personal Information Protection and Electronic Documents Act (PIPEDA), for a domain registrar to request that a web site operator provide a copy of his driver's licence or passport in order to change the administration e-mail address for the web site domain name.