E-TIPS

On March 13, 2023, the British Columbia Supreme Court (the Court) issued its decision in Burke v Red Barn at Mattick’s Ltd, 2023 BCSC 367, certifying a class action lawsuit against an assistant manager at the grocery store, Red Barn at Mattick’s Ltd (RBM,) for breach of privacy, and against RBM for negligence.

On March 28, 2023, the Federal Court of Canada (the Court) in Coca-Cola Company v Canada (Attorney General), 2023 FC 424, held that the Commissioner of Patents (the Commissioner) erred in law in its assessment of the inventive concept relating to a patent for plastic beverage and food containers and methods for making same, and ordered the matter to be referred back to the Commissioner for redetermination of certain claims.

On March 2, 2023, the Federal Court of Canada (the Court) published a Notice to the Parties and the Profession titled “Pilot Project: Chambers of the Court” (the Notice), announcing the creation of the following three specialized Chambers of the Court: 1. Intellectual Property and Competition Chambers; 2. Maritime and Admiralty Chambers; and 3. Class Actions Chambers.

On March 16, 2023, the Federal Court of Canada (the Federal Court) issued its decision in Wiseau Studio, LLC v Harper, 2023 FC 354, dismissing Wiseau Studio, LLC’s (the Plaintiff’s) appeal from a previous decision finding that its cause of action for copyright infringement was barred based on cause of action estoppel, as previously reported by the E-TIPS® Newsletter here.

On March 21, 2023, the Federal Court of Canada (the Court) issued its decision in Dermaspark Products Inc v Patel, 2023 FC 388, in which it awarded compensatory and punitive damages for copyright and trademark infringement on summary trial.

On March 16, 2023, the U.S. Copyright Office (the Office) issued a statement of policy (the Guidance), describing how the Office examines human authorship under copyright law for applications to register works containing content generated with artificial intelligence (AI) technology. In the Guidance, the Office affirms that copyright may only protect material that is the product of human creativity, specifying that the term “author” excludes non-humans.

On March 8, 2023, the Federal Court of Canada (the Court) issued its decision in Travel Leaders Group, LLC v 2042923 Ontario Inc. (Travel Leaders), 2023 FC 319, expunging the trademark registration for TRAVEL LEADERS owned by 2042923 Ontario Inc. (Ontario Inc.) because it was abandoned by the owner.

On March 13, 2023, Innovation, Science and Economic Development Canada (ISED) published a companion document to the Artificial Intelligence and Data Act (AIDA). The Government of Canada introduced the AIDA in June 2022 as part of Bill C-27, the Digital Charter Implementation Act, 2022, as previously reported by the E-TIPS® Newsletter here. The companion document provides an overview of Canada’s artificial intelligence (AI) landscape and further details how the AIDA would work in practice.

On March 1, 2023, the Federal Court of Canada (the Court) issued its decision in Louis Vuitton Malletier v Sheine Reyes Rosales, 2023 FC 217, in which it granted Louis Vuitton Malletier’s and Louis Vuitton Canada, Inc.’s (collectively, Louis Vuitton’s) motion for default judgment, finding that Sheine Reyes Rosales (the Defendant) engaged in activity that infringed the Louis Vuitton’s trademarks, namely, selling counterfeit products bearing the registered Louis Vuitton trademarks (the Marks), which continued despite two cease and desist letters.

On March 1, 2023, the United States Food and Drug Administration’s Center for Drug Evaluations and Research (CDER) released a discussion paper on the application of artificial intelligence (AI) in drug manufacturing (the Paper). The Paper identifies areas of consideration for public input and CDER welcomes feedback from stakeholders to assist in the evaluation and development of policy in the space.

On February 17, 2023, the Federal Court of Canada (the Court) issued its decision in Boehringer Ingelheim (Canada) Ltd. et al. v Sandoz Canada Inc., 2023 FC 241, in which it held that defendants may counterclaim as of right against non-asserted patent claims in actions commenced under section 6(1) of the Patented Medicines (Notice of Compliance) Regulations (the Regulations).

On January 30, 2023, the Office of the Privacy Commissioner of Canada (OPC) announced that it had provided the Joint Chairs of the Special Joint Committee on the Declaration of Emergency with a brief (the Brief), which outlines the key principles for government institutions to follow during an emergency to ensure that privacy rights are respected.

On February 7, 2023, the Alberta Court of Appeal (the Court) issued its decision in Setoguchi v Uber BV, 2023 ABCA 45, upholding the lower court’s dismissal of a class certification motion for a data breach that impacted personal information collected by Uber.

On February 3, 2023, the England and Wales Court of Appeal (the Court) released its decision in Tulip Trading Limited (A Seychelles Company) v Bitcoin Association For BSV & Ors [2023] EWCA Civ 83, finding a serious issue to be tried on the question of whether bitcoin developers may owe fiduciary duties or duties in tort to cryptocurrency owners.

On February 8, 2023, in Hermès International, et al. v Rothschild, S.D.N.Y., No. 1:22-cv-00384, a nine-person jury in the US District Court for the Southern District of New York found Mason Rothschild liable to Hermès International and Hermès of Paris, Inc. (collectively, Hermès) for trademark infringement, trademark dilution, and cybersquatting, awarding $133,000 in total damages. This constitutes the first decision considering the nexus of intellectual property law and non-fungible tokens (NFTs).

On February 8, 2023, the Federal Court of Canada (the Court) issued its decision in Cheung’s Bakery Products Ltd. v Easywin Ltd., 2023 FC 190, in which it expunged two Chinese character trademark registrations owned by Easywin Ltd. (Easywin) on the basis of confusion with prior trademark registrations and bad faith.

On February 2, 2023, Ontario’s Ministry of Health (the Ministry) released its new health care plan, entitled Your Health: A Plan for Connected and Convenient Care (the Plan). As part of the Plan, the Ministry intends to replace fax machines with digital communication alternatives at all Ontario health care providers within the next five years.

On February 7, 2023, the Federal Court of Canada (the Court) issued its decision in Master Saddles Inc v Moffat & Co, 2023 FC 179, in which it partially granted Master Saddles Inc.’s (Masters Saddles) appeal of a section 45 decision of the Trademarks Opposition Board (the Board).

On January 26, 2023, the Office of the Privacy Commissioner of Canada (OPC) announced the results of its recent investigation into Home Depot of Canada Inc. (Home Depot), finding that Home Depot forwarded customer information to Meta without customers’ knowledge or consent.

On January 23, 2023, the Federal Court of Canada (the Court) issued its decision in Ecolab USA Inc v Smart & Biggar, 2023 FC 101, granting Ecolab USA Inc.’s (the Applicant’s) appeal and overturning the Trademarks Opposition Board’s (the Board’s) decision to expunge the trademark NAVIGATOR (the Mark).