E-TIPS

On March 25, 2022, the European Commission (EC) and the United States (US) announced reaching a new deal in principle on cross-border data flows. The new deal is aimed to establish a legal mechanism, referred to as the Trans-Atlantic Data Privacy Framework, for European Union (EU) personal data transfers to the US. It is intended to replace the EU-US Privacy Shield invalidated by the Court of Justice of the European Union in July 2020, as previously reported by the E-TIPS® Newsletter here.

On December 22, 2021, the Federal Court of Canada (the Court) in Google LLC v Sonos, Inc., 2021 FC 1462 (released earlier this month), dismissed Sonos, Inc.’s (Sonos) motion for summary judgment that relied on a voluntary dismissal of a parallel patent infringement action in the United States (US). The Court held that Sonos had failed to establish that there was no genuine issue for trial in Canada.

On February 28, 2022, the European Committee of the Regions (ECR) published its recommendations for amendments to the European Commission’s proposal (the Draft Regulation) for a regulation laying down harmonised rules on artificial intelligence (AI).

On February 22, 2022, the Federal Court of Canada (the Court) issued its decision in Nia Wine Group Co., Ltd. v North 42 Degrees Estate Winery Inc., 2022 FC 241, in which it held that “place of origin” under section 12(1)(b) of the Trademarks Act (the Act) can include a line of latitude.

On March 9, 2022, President Joe Biden signed an executive order (the Order), that outlined the United States government’s strategy regarding the regulation of digital assets, such as cryptocurrencies.

On February 14, 2022, the Federal Court of Canada (the Court) issued its decision in Lululemon Athletica Canada Inc. v Campbell, 2022 FC 194. In its decision, the Court noted that the evidence of infringement was “overwhelming”, granted a motion for summary trial brought by Lululemon Athletica Canada Inc. (Lululemon) and awarded compensatory damages, punitive damages, and an injunction.

On February 28, 2022, the Ontario legislature introduced Bill 88, Working for Workers Act, 2022 (Bill 88). If passed, Bill 88 will, among other changes, require employers to have a written electronic monitoring policy in place.

On February 10, 2022, the Ontario Superior Court of Justice (the Court) in 2788610 Ontario Inc. v Bhagwani et al., 2022 ONSC 905, issued an interlocutory injunction prohibiting Hemant Bhagwani, Fatima Bhagwani, 1727799 Ontario Inc. and Bombay Frankie Inc. (collectively, the Defendants), from using the term “Bombay Frankie” as the name of any restaurant or franchising business, social media account, or website.

On February 24, 2022, the Supreme Court of the United States (SCOTUS) issued its decision in Unicolors, Inc. v. H&M Hennes & Mauritz, L. P., Case No. 20-915, holding that a lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration under 17 U.S.C. § 411(b)(1)(A), the safe harbor provision of the US Copyright Act.

On March 3, 2022, the Government of Ontario announced the launch of a new board-governed agency, Intellectual Property Ontario. The new agency is meant to serve as a go-to resource of intellectual property (IP) expertise “to help researchers and companies maximize the value of their IP, strengthen their capacity to grow and compete in the global market”.

June 17, 2022 is a significant day in Canadian trademark practice. Why? That day is the third anniversary of the coming into force of significant amendments to Canada’s Trademarks Act. Why should you care?

On January 17, 2022, the Ontario Superior Court of Justice (the Court) in Winder v Marriott International, Inc., 2022 ONSC 390, found no legally viable cause of action for intrusion upon seclusion against Marriott International Inc., Luxury Hotels International of Canada ULC and Starwood Canada ULC (collectively, Marriott) since it was not an intruder for the purposes of the tort of intrusion upon seclusion recognized in Jones v Tsige, 2012 ONCA 32.

On February 3, 2022, the Federal Court of Canada (the Court) issued its decision in UBS Group AG v Yones, 2022 FC 132, granting default judgement and finding that Unified Business Solutions Group Inc. (Unified) had infringed UBS Group AG’s trademark rights.

On January 27, 2022, the Supreme Court of British Columbia (the Court) issued its decision in Chow v Facebook, Inc., 2022 BCSC 137 (Chow), declining to certify a class action lawsuit against Facebook.

On February 2, 2022, the Federal Court of Canada (the Court) released its decision in 1196278 Ontario Inc DBA Sassafraz v 815470 Ontario Ltd DBA Sassafras Coastal Kitchen & Bar, 2022 FC 116. In that decision, the Court granted declaratory and injunctive relief, and nominal damages, for trademark infringement and depreciation of goodwill of the registered trademark SASSAFRAZ.

On January 19, 2022, the Federal Court of Canada (Court) in Janssen Inc. v. Pharmascience Inc., 2022 FC 62, found a summary trial proceeding to be appropriate in determining the issue of patent infringement in an action under the Patented Medicines (Notice of Compliance) Regulations (the Regulations). The Court also clarified the parties’ burden on a motion for summary trial.

On January 17, 2022, the BC Financial Services Authority (BCFSA) issued a Discussion Paper on the reporting obligations for financial institutions with respect to information security (IS) incidents. In the Discussion Paper, BCFSA is considering implementing new mandatory reporting obligations for financial institutions.

On February 2, 2022, the Government of Canada introduced Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts (Bill C-11 or the Online Streaming Act), with the aim to support the next generation of Canadian artists and creators.

On January 17, 2022, in Cicada 137 LLC v Medjedovic, 2022 ONSC 369, the Ontario Superior Court of Justice (the Court) decided on a procedural issue in relation to a claim by the plaintiff, Cicada 137 LLC (Cicada), that the 19-year old defendant allegedly stole $15 million in cryptocurrency tokens. In the decision, the Court confirmed Cicada’s entitlement to inspect devices seized under an Anton Piller order despite delivery of a notice of motion by the defendant’s parents seeking to set aside the order.

On January 7, 2022, Health Canada issued a notice of consultation for proposed amendments to the Medical Device Regulations. According to the notice, the proposed amendments will deliver on commitments outlined in the Health and Biosciences Regulatory Review, which focuses on modernizing the existing regulatory frameworks for medical devices and drugs.