E-TIPS

On August 6, 2024, the Federal Court of Appeal of Canada (the Court) in Rovi Guides, Inc. v Videotron Ltd., 2024 FCA 125, upheld the lower court’s judgement finding that Rovi Guides Inc.’s (Rovi) patents relating to interactive television program guide (IPG) technology were invalid. The Court also reviewed the principles for awarding remedies for patent infringement and commented, in obiter, as to the remedies Rovi would have been entitled to if its patents were found valid and infringed.

On August 19, 2024, the Federal Court of Appeal of Canada (the Court) released its decision in Agracity Crop v Upl Na Inc, 2024 FCA 133, dismissing Agracity Crop & Nutrition Ltd.’s (Agracity) appeal of the lower court’s decision finding that it had infringed Canadian Patent No. 2,346,021 (the 021 Patent).

On August 28, 2024, the Office of the Privacy Commissioner of Canada (OPC) announced the signing of a Memorandum of Understanding (MOU) with the U.S. Federal Communications Commission (FCC) to strengthen mutual assistance and the exchange of information for the purpose of enforcing compliance and sharing expertise with respect to applicable laws.

On August 15, 2024, the Federal Court of Canada (the Court) issued its decision in Smooth Payment Inc. v Klarna Bank Ab, 2024 FC 1274, allowing Smooth Payment Inc.’s (SPI) application in part in its appeal of four summary cancellation decisions made pursuant to section 45 of the Trademarks Act.

On July 26, 2024, JAMP Pharma Corporation (JAMP) filed an application to Canada’s Competition Tribunal (Tribunal) against Janssen Inc. (Janssen) relating to an abuse of dominance allegation with respect to Janssen’s biologic drug Stelara, an ustekinumab drug product for the treatment of certain autoimmune diseases.

On August 2, 2024, David Millette (the Plaintiff) filed, individually and on behalf of a proposed class of YouTube users and video creators, a class action complaint against OpenAI, Inc. and related entities (collectively, OpenAI) in Millette v OpenAI, Inc. et al, 3:24-cv-04710. The Plaintiff’s complaint pertains to the alleged non-consensual transcription of class members’ YouTube videos by OpenAI to train their artificial intelligence (AI) software products.

On July 26, 2024, the Court of King’s Bench of Alberta (the Court) released its decision in Bank of Montreal v 2093924 Ontario Inc, 2024 ABKB 457, finding that the doctrine of patent exhaustion prevented 1643434 Alberta Ltd. (164) from blocking the sale of its former property (the Wash Factory) to a competitor, Klair Group Industries Ltd. (Klair).

On August 6, 2024, in Bureau National Interprofessionnel Du Cognac v Cologne & Cognac Entertainment, Case No. 23-1100, the United States Court of Appeals for the Federal Circuit (the Court) vacated a decision of the United States Patent and Trademark Office Trademark Trial and Appeal Board (the Board). The Board had previously determined that there was no likelihood of confusion between the certification mark COGNAC and a trademark application for a design including the words COLOGNE & COGNAC ENTERTAINMENT Design (the Mark) for hip-hop music and production services.

On July 9, 2024, the Federal Court of Canada (the Court), in Rogers Media Inc. v John Doe 1, 2024 FC 1082, issued a dynamic site blocking Order requiring (i) the unauthorized streaming services (the Unknown Respondents) to cease providing unauthorized streams of National Hockey League (NHL) games, National Basketball Association (NBA) games, and Premier League football matches, and (ii) certain internet service providers (the Third Party Respondents) to block or attempt to block access to streaming servers that provide unauthorized access to these live sporting events.

On July 18, 2024, the Federal Court of Canada (the Court) released its decision in Demirören TV Radyo Yayincilik Yapimcilik A.Ş. v General Entertainment and Music Inc., 2024 FC 1127, finding that one of Türkiye’s largest broadcasters, Demirören TV Radyo Yayincilik Yapimcilik A.Ş. (the Plaintiff), owns copyright in its various episodes of original television programming (the Programs) and that General Entertainment and Music Inc. (the Defendant) infringed its copyright in certain Programs.

On July 19, 2024, the England and Wales Court of Appeal (the Court) released its decision in Comptroller General of Patents, Designs and Trade Marks v Emotional Perception AI Ltd, [2024] EWCA Civ 825, finding that a trained artificial neural network (ANN) is unpatentable pursuant to the “program for a computer” subject matter exclusion under section 1(2)(c) of the United Kingdom (UK) Patents Act 1977 (the Act).

On July 23, 2024, the Federal Court of Canada (the Court) issued its decision in Louis Vuitton Malletier S.A. v Torf, 2024 FC 1152, finding certain defendants liable for violations of Canada’s Trademarks Act and Copyright Act deriving from the sale of counterfeit Louis Vuitton merchandise.

On July 9, 2024, the Office of the Privacy Commissioner of Canada (OPC), along with 25 privacy enforcement authorities around the world, published their findings following a global privacy sweep conducted earlier this year on more than 1,000 websites and mobile apps.

On June 26, 2024, Innovation, Science and Economic Development Canada (ISED) launched a public consultation on Canada’s artificial intelligence (AI) computing infrastructure. The feedback from this consultation will shape the design and implementation of the AI Compute Access Fund (the Access Fund) and the Canadian AI Sovereign Compute Strategy (the Sovereign Strategy), which are initiatives launched by Budget 2024.

On June 21, 2024, the British Columbia Supreme Court (the Court) in British Columbia (Attorney General) v. Gondor, 2024 BCSC 1077, ordered the return of electronic records containing personal information (the Identified Records) that belonged to a public body employer, the District of Saanich (the District), after finding that the District’s former employee (Gondor) made copies of the Identified Records and distributed them without authorization.

The Canadian Intellectual Property Office (CIPO) has at very long last finally made progress in tackling the long-standing trademark examination backlog. In a 2024 issue of our E-TIPS® Newsletter (see here for a previous report by the E-TIPS® Newsletter), we noted that there were reasons for optimism, and our optimism appears to have been justified.

On June 26, 2024, the Québec government published the final version of the Regulation to amend mainly the Regulation respecting the language of commerce and business (the Regulation), which clarifies some uncertainties raised by Bill 96 regarding non-French trademark use in Québec. The trademark requirements under Bill 96 and the Regulation are set to come into force on June 1, 2025.

On June 10, 2024, the Office of the Privacy Commissioner of Canada (OPC) announced an exploratory consultation seeking public comments on privacy-protective age assurance with a goal of developing a future guidance document on the design and use of age-assurance systems.

On June 3, 2024, the Supreme Court of British Columbia (the Court) released its decision in Ari v Insurance Corporation of British Columbia, 2024 BCSC 964, finding that damages of $15,000 per class member fell within the category of a “modest or nominal award” in the circumstances.

On June 8, 2024, the Canadian Intellectual Property Office (CIPO) launched a consultation on proposed amendments (the Amendments) to the Trademarks Regulations (the Regulations), which are intended to increase the efficiency of proceedings before the Trademarks Opposition Board (TMOB) and discourage certain undesirable behaviours.