Information and Privacy Laws Across Canada are Overdue for Reform Information and Privacy Laws Across Canada are Overdue for Reform

Privacy
November 13, 2019November 13, 20192019-11-13
On November 6, 2019, the Office of the Privacy Commissioner of Canada (OPC) announced a joint resolution of the federal, provincial and territorial Information and Privacy Commissioners (collectively, the Commissioners) calling on their governments to modernize access to information and privacy laws, which they say "have sadly fallen behi
Deeth Williams Wall https://www.dww.com/articles/information-and-privacy-laws-across-canada-are-overdue-for-reform

European Trademark Invalidity Questions Referred to the CJEU European Trademark Invalidity Questions Referred to the CJEU

Trademark and Copyright Litigation
November 13, 2019November 13, 20192019-11-13
In the recent opinion issued by the Advocate General (AG) of the Court of Justice of the European Union (CJEU) in Sky v SkyKick (Case C-371/18), the AG advised that trademark registrations that cover broad and imprecise goods and services, such as “computer software”, could be declared invalid on the basis that they are contrary to public policy.
Deeth Williams Wall https://www.dww.com/articles/european-trademark-invalidity-questions-referred-to-cjeu

United States District Court to Address Copyright and Embedded Tweets United States District Court to Address Copyright and Embedded Tweets

Copyright
November 13, 2019November 13, 20192019-11-13
On October 27, 2019, Mr. Justin Goldman (Goldman) filed a lawsuit against Cox Radio Inc. in the US District Court for the Southern District of Florida (Court) for the alleged unauthorized use of a photo embedded in the company’s online tweets. The photo, which was protected by federal copyright and registered with the United States Copyright Office, went viral and created speculation surrounding the circumstances of two prominent sports figures.
Deeth Williams Wall https://www.dww.com/articles/united-states-district-court-to-address-copyright-and-embedded-tweets

Mandatory Breach Reporting Rules under PIPEDA Turns One Mandatory Breach Reporting Rules under PIPEDA Turns One

Privacy
November 13, 2019November 13, 20192019-11-13
On November 1, 2018, mandatory breach reporting rules under the Personal Information Protection and Electronic Documents Act (PIPEDA) came into effect (reported by the E-TIPS® Newsletter here). Since then, the Office of the Privacy Commissioner of Canada (OPC) has received over 680 breach reports affecting more than 28 million Canadians.
Deeth Williams Wall https://www.dww.com/articles/mandatory-breach-reporting-rules-under-pipeda-turns-one

Software Flaws with the Uber Self-Driving Car Caused the Fatal Crash in 2018 Software Flaws with the Uber Self-Driving Car Caused the Fatal Crash in 2018

Information Technology
November 13, 2019November 13, 20192019-11-14
On March 18, 2018, a self-driving Uber car in Tempe, Arizona hit a pedestrian walking her bicycle outside of an allocated crosswalk at night.  The pedestrian  died. It was recently revealed by a National Transportation Safety Board (NTSB) report that this fatal collision was due to a software flaw in Uber’s automated vehicles; the technology of these test vehicles did not have the ability to anticipate or detect jaywalking pedestrians.
Deeth Williams Wall https://www.dww.com/articles/software-flaws-uber-selfdriving-car-caused-fatal-crash-2018

Section 8 Defence of Infringement Must be Grounded in Actual Infringement Section 8 Defence of Infringement Must be Grounded in Actual Infringement

Pharmaceutical Patent Litigation
November 13, 2019November 13, 20192019-11-13
On October 10, 2019, the Federal Court of Canada, in Pharmascience Inc. v Pfizer Canada ULC 2019 FC 1271, held that reliance on section 8 of the Patent Medicines Notice of Compliance Regulations (the Regulations) must be grounded in actual, and not hypothetical or potential, infringement.
Deeth Williams Wall https://www.dww.com/articles/section-8-defence-of-infringement-must-be-grounded-actual-infringement

Changes to Canada's Patent Act and Rules Now in Force Changes to Canada's Patent Act and Rules Now in Force

Patent
October 30, 2019October 30, 20192019-10-30
On October 30, 2019, significant amendments to Canada’s Patent Act and Rules came into force.  The amendments made include the removal of 42 month national phase entry as of right, the introduction of restoration of priority, and the requirement to submit certified copies of priority documents.
Deeth Williams Wall https://www.dww.com/articles/changes-to-canadas-patent-act-and-rules-now-force

Ontario Court Assumes Jurisdiction in “Inside Out” Copyright Lawsuit Ontario Court Assumes Jurisdiction in “Inside Out” Copyright Lawsuit

Copyright
October 30, 2019October 30, 20192019-10-30
On October 15, 2019, in Pourshian v Walt Disney Company, 2019 ONSC 5916, the Ontario Superior Court of Justice (Court) found that it had jurisdiction to hear Mr. Damon Pourshian (Pourshian)’s claim for copyright infringement against Walt Disney Pictures Inc (Walt Disney), Pixar Animation Studios (Pixar) and Disney Shopping Inc (Disney Shopping) over the 2015 animated film “Inside Out.” The Court found that there was a real and substantial connection in relation to the claims and Ontario.
Deeth Williams Wall https://www.dww.com/articles/ontario-court-assumes-jurisdiction-%E2%80%9Cinside-out%E2%80%9D-copyright-lawsuit

Rubik’s Cube Owner Loses EU Trademark for Puzzle’s 3-D Shape Rubik’s Cube Owner Loses EU Trademark for Puzzle’s 3-D Shape

Trademark
October 30, 2019October 30, 20192019-10-30
On October 24, 2019, the General Court of the European Union (Court) confirmed the cancellation of the EU trademark for the shape of the Rubik’s Cube.  The Court found that the essential characteristics of the Rubik’s Cube’s shape are necessary for the product’s rotating capability and thus cannot be registered as a trademark.
Deeth Williams Wall https://www.dww.com/articles/rubik%E2%80%99s-cube-owner-loses-eu-trademark-for-puzzle%E2%80%99s-3d-shape

OPC Concludes Investigation into Authentication and Data Transfer Practices Used During Loblaw Gift Card Offering OPC Concludes Investigation into Authentication and Data Transfer Practices Used During Loblaw Gift Card ...

Privacy
October 30, 2019October 30, 20192019-10-31
On October 16, 2019, the Office of the Privacy Commissioner of Canada (OPC) concluded its investigation into Loblaw Co Ltd (Loblaw)’s authentication processes and data transfers related to their gift card program.  Loblaw’s gift card program was created in response to the retailer's admitted part in a bread price-fixing scandal.
Deeth Williams Wall https://www.dww.com/articles/opc-concludes-investigation-into-authentication-and-data-transfer-practices-used-during

Reports of Privacy Breaches in Alberta’s Health Sector Increase After Incident Reporting Made Mandatory Under Provincial Law Reports of Privacy Breaches in Alberta’s Health Sector Increase After Incident Reporting Made Mandatory U...

Privacy
October 30, 2019October 30, 20192019-10-30
Alberta’s health sector has seen a dramatic increase in the number of privacy breaches reported after Alberta’s Health Information Act made reporting of these incidents mandatory in August 2018.  Prior to the legislative change, Alberta’s Office of the Information and Privacy Commissioner (OIPC) would receive approximately 130 voluntary incident reports a year.  In the first year since reporting became mandatory, the OIPC stated that the number has jumped to well over 1,000.
Deeth Williams Wall https://www.dww.com/articles/reports-of-privacy-breaches-alberta%E2%80%99s-health-sector-increase-after-incident-reporting-made

USPTO Provides Update on Patent Subject Matter Eligibility USPTO Provides Update on Patent Subject Matter Eligibility

Patent
October 30, 2019October 30, 20192019-10-30
On October 17, 2019, the United States Patent and Trademark Office (USPTO) provided an update to its patent eligibility guidance. The update discusses and elaborates on the 2019 Revised Patent Subject Matter Eligibility Guidance (2019 PEG) that was issued by the USPTO on January 7, 2019.
Deeth Williams Wall https://www.dww.com/articles/uspto-provides-update-on-patent-subject-matter-eligibility

Top Tech CEOs Warn Canada's “Future Economic Prosperity is at Risk” in Letter to Federal Leaders Top Tech CEOs Warn Canada's “Future Economic Prosperity is at Risk” in Letter to Federal Leaders

Information Technology
October 17, 2019October 17, 20192019-10-17
The Council of Canadian Innovators organized a letter from over 100 CEOs of Canadian technology companies to the four federal political party leaders, Justin Trudeau, Andrew Scheer, Jagmeet Singh and Elizabeth May, asking the parties to develop economic policies that would promote talent, growth capital and new customers in the Canadian technology sector.
Deeth Williams Wall https://www.dww.com/articles/top-tech-ceos-warn-canadas-%E2%80%9Cfuture-economic-prosperity-at-risk%E2%80%9D-letter-to-federal-leaders

Foreign File Wrappers Relevant in Canadian Claim Construction Foreign File Wrappers Relevant in Canadian Claim Construction

Patent Litigation
October 16, 2019October 16, 20192019-10-16
On September 25, 2019, in Canmar Foods Ltd. v. TA Foods Ltd., 2019 FC 1233, the Federal Court of Canada (the Court) released the first decision interpreting the new section 53.1 of the Patent Act, which introduced file wrapper estoppel into Canadian patent law. 
Deeth Williams Wall https://www.dww.com/articles/foreign-file-wrappers-relevant-canadian-claim-construction

EU’s Highest Court Rules National Courts May Order Worldwide Injunctions to Remove Unlawful Content EU’s Highest Court Rules National Courts May Order Worldwide Injunctions to Remove Unlawful Content

Information Technology
October 16, 2019October 16, 20192019-10-16
On October 3, 2019, the Court of Justice of the European Union (CJEU), in Eva Glawischnig-Piesczek v Facebook Ireland Limited (ECLI:EU:C:2019:821), held that the European Union’s Directive on Electronic Commerce (Directive 2000/31/EC, the Directive) does not prevent national courts in the European Union (EU) from orderi
Deeth Williams Wall https://www.dww.com/articles/eu%E2%80%99s-highest-court-rules-national-courts-may-order-worldwide-injunctions-to-remove

The Federal Court of Canada Begins Hearing Arguments Regarding the Certification of a Reverse Class Action in File-Sharing Copyright Infringement Case The Federal Court of Canada Begins Hearing Arguments Regarding the Certification of a Reverse Class Actio...

Copyright
October 16, 2019October 16, 20192019-10-16
On September 23 and 24, 2019, the Federal Court of Canada began hearing arguments for and against certifying a reverse class action, where a single plaintiff takes steps to commence an action against a class of defendants with respect to a file-sharing copyright infringement case.
Deeth Williams Wall https://www.dww.com/articles/federal-court-of-canada-begins-hearing-arguments-regarding-certification-of-a-reverse

U.S. Supreme Court Declines to Hear Appeal on Accessibility of Domino’s Pizza’s Website U.S. Supreme Court Declines to Hear Appeal on Accessibility of Domino’s Pizza’s Website

Information Technology
October 16, 2019October 16, 20192019-10-16
On October 7, 2019 the Supreme Court of the United States (the Supreme Court) declined to hear an appeal from Domino’s Pizza, LLC (Domino’s) from a decision of the Court of Appeals for the Ninth Circuit, which held that the Americans with Disabilities Act (ADA) applies to Domino’s website and mobile app and that Domino’s could be liable for damages if its online offerings do not comply with the ADA.
Deeth Williams Wall https://www.dww.com/articles/us-supreme-court-declines-to-hear-appeal-on-accessibility-of-domino%E2%80%99s-pizza%E2%80%99s-website

EU Court of Justice Rules that Storing Cookies Requires Internet Users’ Active Consent EU Court of Justice Rules that Storing Cookies Requires Internet Users’ Active Consent

Privacy
October 16, 2019October 16, 20192019-10-16
On October 1, 2019, the Court of Justice of the European Union (CJEU) ruled that storing cookies on an Internet user’s computer requires active consent. Consent cannot be implied or assumed and therefore a pre-ticked checkbox is insufficient.
Deeth Williams Wall https://www.dww.com/articles/eu-court-of-justice-rules-storing-cookies-requires-internet-users%E2%80%99-active-consent

California’s New IoT Security Law California’s New IoT Security Law

Security
October 2, 2019October 2, 20192019-10-02
On January 1, 2020, California’s new Internet of Things (IoT) Security Law goes into effect. The new law, which requires that all IoT devices sold in California be equipped with reasonable security features, is the first IoT-specific security law in the United States.
Deeth Williams Wall https://www.dww.com/articles/california%E2%80%99s-new-iot-security-law

Recovery of Profit Claim Fails for Failing to Prove Profits Sought Related to Alleged Infringement Recovery of Profit Claim Fails for Failing to Prove Profits Sought Related to Alleged Infringement

Trademark and Copyright Litigation
October 2, 2019October 2, 20192019-10-02
On August 21, 2019, the Québec Superior Court (Court) released its judgment, in Constellation Brands US Operations c Société de vin internationale ltée, 2019 QCCS 3610, finding that Constellation Brands US Operations (Constellation) failed to prove its claim for damages against Société de vin international ltée (SVI).
Deeth Williams Wall https://www.dww.com/articles/recovery-of-profit-claim-fails-for-failing-to-prove-profits-sought-related-to-alleged

Disclaimer: This Newsletter is intended to provide readers with general information on legal developments in the areas of e-commerce, information technology and intellectual property. It is not intended to be a complete statement of the law, nor is it intended to provide legal advice. No person should act or rely upon the information contained in this newsletter without seeking legal advice.

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