Federal Court Determines that “Position Questions” are Improper Discovery Questions Federal Court Determines that “Position Questions” are Improper Discovery Questions

Pharmaceutical Patent Litigation
May 6, 2020May 6, 20202020-05-06
On March 3, 2020, in Bayer Inc v Apotex Inc (2020 FC 325), the Federal Court (the Court) determined that questions on discovery about a party’s “position” were improper discovery questions.
Deeth Williams Wall https://www.dww.com/articles/federal-court-determines-%E2%80%9Cposition-questions%E2%80%9D-are-improper-discovery-questions

Federal Court of Appeal Dismisses Appeal in JAVELO Trademark Opposition Federal Court of Appeal Dismisses Appeal in JAVELO Trademark Opposition

Trademark and Copyright Litigation
May 6, 2020May 6, 20202020-05-06
On April 20, 2020, in The Clorox Company of Canada, Ltd v Chloretec S.E.C. (2020 FCA 76), the Canadian Federal Court of Appeal (FCA) dismissed an appeal by The Clorox Company of Canada (Clorox) from a decision of the Federal Court (FC) rejecting Clorox’s opposition to the trademark applications for JAVELO and JAVELO & Design (collectively, Marks).
Deeth Williams Wall https://www.dww.com/articles/federal-court-of-appeal-dismisses-appeal-javelo-trademark-opposition

3M Files Canadian Lawsuit Against Two University Students For Allegedly Selling N95 Masks at Exorbitant Prices 3M Files Canadian Lawsuit Against Two University Students For Allegedly Selling N95 Masks at Exorbitant P...

Litigation
May 6, 2020May 6, 20202020-05-06
Recently, 3M, the American respirator manufacturer, sued two Canadian students for allegedly selling N95 face masks at grossly high prices amid the COVID-19 pandemic. The FDA-approved N95 mask developed by 3M has surged in popularity during the COVID-19 pandemic due to its ability to protect mask wearers from air particles, including those the size of the novel coronavirus. There is a current shortage of these masks in Canada and many consumers are urgently searching online for sellers with N95 inventory.
Deeth Williams Wall https://www.dww.com/articles/3m-files-canadian-lawsuit-against-two-university-students-for-allegedly-selling-n95-masks

Georgia Can’t Copyright the Law Georgia Can’t Copyright the Law

Trademark and Copyright Litigation
May 6, 2020May 6, 20202020-05-06
In Georgia et al. Public Resource.Org, Inc. 590 U.S. _ (2020), the Supreme Court of the United States (the Court) held that the Official Code of Georgia Annotated (the OCGA) is not entitled to copyright protection.  The OCGA contains the text of the every state of Georgia statute and non-binding annotations.  There was no dispute that copyright protection did not extend to the text of statutes, however the state argued that the annotations were entitled to copyright. 
Deeth Williams Wall https://www.dww.com/articles/georgia-can%E2%80%99t-copyright-law

US Court of Appeals Holds That Colour Trademarks Applied to Packaging Can Be Inherently Distinctive US Court of Appeals Holds That Colour Trademarks Applied to Packaging Can Be Inherently Distinctive

Trademark and Copyright Litigation
April 22, 2020April 22, 20202020-04-22
On April 8, 2020, in In Re: Forney Industries, Inc (No. 19-1073 (Fed. Cir. 2020)) the US Court of Appeals for the Federal Circuit (the Court) held that a colour mark applied to the packaging of a product can indicate the source of the goods to a customer, and therefore, can be inherently distinctive.
Deeth Williams Wall https://www.dww.com/articles/us-court-of-appeals-holds-colour-trademarks-applied-to-packaging-can-be-inherently

Federal Court Considers Certificate of Supplementary Protection Regulations Federal Court Considers Certificate of Supplementary Protection Regulations

Patent Litigation
April 22, 2020April 22, 20202020-04-22
On April 7, 2020, in Glaxosmithkline Biologicals S.A. v. Canada (Health), 2020 FC 397, the Canadian Federal Court (the Court) set aside a decision of the Minister of Health (the Minister) to refuse to issue a Certificate of Supplementary Protection (CSP) in respect of Canadian Patent No. 2,600,905 (the 905 Patent) and the drug SHINGRIX®.  The matter was returned to the Minister for redetermination.
Deeth Williams Wall https://www.dww.com/articles/federal-court-considers-certificate-of-supplementary-protection-regulations

EU Court Holds Amazon Not Liable for Third Party Trademark Infringement through its Online Marketplace Platform EU Court Holds Amazon Not Liable for Third Party Trademark Infringement through its Online Marketplace Pl...

Trademark and Copyright Litigation
April 22, 2020April 22, 20202020-04-22
On April 2, 2020, the Court of Justice of the European Union (“CJEU”) released its decision in Coty Germany GmbH v Amazon Services Europe Sàrl et al (C-567/18) finding that the storage and distribution of goods on behalf of third party sellers via the Amazon-Marketplace platform does not constitute trademark “use”, and hence Amazon is not liable for third party trademark infringement.
Deeth Williams Wall https://www.dww.com/articles/eu-court-holds-amazon-not-liable-for-third-party-trademark-infringement-through-its-online

Federal Court Resolves Patent Infringement Action by Summary Trial Federal Court Resolves Patent Infringement Action by Summary Trial

Patent Litigation
April 22, 2020April 22, 20202020-04-22
Despite the Supreme Court’s call in Hryniak v.
Deeth Williams Wall https://www.dww.com/articles/federal-court-resolves-patent-infringement-action-by-summary-trial

US Court Finds Replication of NBA Players’ Tattoos in Video Games Does Not Constitute Copyright Infringement US Court Finds Replication of NBA Players’ Tattoos in Video Games Does Not Constitute Copyright Infringem...

Trademark and Copyright Litigation
April 22, 2020April 22, 20202020-04-22
On March 26, 2020, in Solid Oak Sketches LLC v 2K Games Inc et al, 16-CV-724-LTS-SDA, the US District Court for the Southern District of New York (the Court) issued an opinion granting the Defendants’ motion for summary judgment, finding that the replication of basketball players’ tattoos in a video game does not constitute copyright infringement.
Deeth Williams Wall https://www.dww.com/articles/us-court-finds-replication-of-nba-players%E2%80%99-tattoos-video-games-does-not-constitute

US Federal Court Rules Children Are Not Bound by Terms of Use Signed by Parents in Amazon Alexa’s Privacy Battle US Federal Court Rules Children Are Not Bound by Terms of Use Signed by Parents in Amazon Alexa’s Privacy...

Privacy
April 22, 2020April 22, 20202020-04-22
Earlier this month, a federal judge denied Amazon’s motion to compel arbitration in the privacy battle over the collection of children’s voiceprints.
Deeth Williams Wall https://www.dww.com/articles/us-federal-court-rules-children-are-not-bound-by-terms-of-use-signed-by-parents-amazon

OPC Issues Guidance on Federal Privacy Laws in light of the COVID-19 Outbreak OPC Issues Guidance on Federal Privacy Laws in light of the COVID-19 Outbreak

Privacy
April 9, 2020April 9, 20202020-04-09
On March 20, 2020, the Office of the Privacy Commissioner of Canada (the OPC) issued guidance to assist organizations in navigating their privacy obligations with respect to collection, use and disclosure of personal information during a public health crisis.
Deeth Williams Wall https://www.dww.com/articles/opc-issues-guidance-on-federal-privacy-laws-light-of-covid19-outbreak

Patent Act Amended in Response to COVID-19 Patent Act Amended in Response to COVID-19

Patent
April 9, 2020April 9, 20202020-04-09
On March 25, 2020, Bill C-13, An Act respecting certain measures in response to COVID-19 (the Act) received royal assent.  The Act amends the Patent Act to allow authorized use of a patented invention in response to a public health emergency that is a matter of national concern.
Deeth Williams Wall https://www.dww.com/articles/patent-act-amended-response-to-covid19

Cybersecurity Experts See Increase in Phishing Activities Due To COVID-19 Cybersecurity Experts See Increase in Phishing Activities Due To COVID-19

Privacy
April 9, 2020April 9, 20202020-04-09
On March 11, 2020, the World Health Organization declared that the COVID-19 outbreak had reached the status of a pandemic. Since then, many countries, including Canada, have taken several measures to decrease the spread of this virus, including encouraging businesses to allow employees to work remotely. However, the convenience that comes with working remotely has led to an increase in employee vulnerability to phishing activities.
Deeth Williams Wall https://www.dww.com/articles/cybersecurity-experts-see-increase-phishing-activities-due-to-covid19

The Standing Committee on Industry, Science and Technology Recommends Adding a Digital Lock Exception to the CUSMA Copyright Provisions The Standing Committee on Industry, Science and Technology Recommends Adding a Digital Lock Exception to ...

Copyright
April 9, 2020April 9, 20202020-04-09
On February 24, 2020, the Standing Committee on Industry, Science and Technology (the Industry Committee) released its recommendations for changes to Bill C-4, An Act to implement the Agreement between Canada, the United States of America and the United Mexican States. In addition to various other intellectual property and copyright concerns, the Industry Committee recommended adding a digital lock exception to the Canada-United States–Mexico Agreement (CUSMA) copyright provisions.
Deeth Williams Wall https://www.dww.com/articles/standing-committee-on-industry-science-and-technology-recommends-adding-a-digital-lock

SCOTUS says North Carolina is not a Digital Pirate SCOTUS says North Carolina is not a Digital Pirate

Trademark and Copyright Litigation
April 9, 2020April 9, 20202020-04-09
In Allen et al. v Cooper, et al. 589 U.S. (2020), the United States Supreme Court (the Court) held that North Carolina’s display of copyrighted material depicting the salvage of English pirate Blackbeard’s ship, the Queen Anne’s Revenge, was immune to a copyright infringement action. 
Deeth Williams Wall https://www.dww.com/articles/scotus-says-north-carolina-not-a-digital-pirate

Zoom Is The Subject of Class Action Lawsuit Claiming Sharing Data with Third Parties without Consent Zoom Is The Subject of Class Action Lawsuit Claiming Sharing Data with Third Parties without Consent

Privacy
April 9, 2020April 9, 20202020-04-09
On March 31, 2020, a class action lawsuit was filed in a California court against Zoom Video Communications Inc. (Zoom), the video-conferencing solution that has been a useful alternative for business meetings as more people work from home during the COVID-19 pandemic, for allegedly sharing data with third parties without appropriate user consent.
Deeth Williams Wall https://www.dww.com/articles/zoom-subject-of-class-action-lawsuit-claiming-sharing-data-third-parties-without-consent

Health Canada Takes Steps to Streamline Access to COVID-19-Related Therapeutic Products Health Canada Takes Steps to Streamline Access to COVID-19-Related Therapeutic Products

Regulatory Law
March 25, 2020March 25, 20202020-03-25
Health Canada, the USFDA and their UK and European equivalents are taking steps to streamline approval and change notification processes for medical devices (especially masks and ventilators), COVID-19 diagnostic test kits (of which there are dozens of brands and approaches), and drugs for the prevention, diagnosis and treatment of COVID-19.
Deeth Williams Wall https://www.dww.com/articles/health-canada-takes-steps-to-streamline-access-to-covid19related-therapeutic-products-0

Canadian Intellectual Property Office Extends Deadlines in Response to COVID-19 Outbreak Canadian Intellectual Property Office Extends Deadlines in Response to COVID-19 Outbreak

Intellectual Property
March 25, 2020March 25, 20202020-07-12
On June 30, 2020, the Canadian Intellectual Property Office (the Office) announced that while the Office remains open and in operation, patent, trademark and industrial design deadlines falling between March 16, 2020 to July 17, 2020 are extended to July 20, 2020 as a result of the COVID-19 outbreak.  The Office noted that a further extension may be granted if warranted by the circumstances.
Deeth Williams Wall https://www.dww.com/articles/canadian-intellectual-property-office-extends-deadlines-response-to-covid19-outbreak

Ontario Court Declines to Enforce No-Challenge Patent Clause Ontario Court Declines to Enforce No-Challenge Patent Clause

Intellectual Property
March 25, 2020March 25, 20202020-03-25
On February 3, 2020, in Loops v. Maxill Inc., 2020 ONSC 971, the Ontario Superior Court (the Court) dismissed a motion by Loops, LLC (Loops) for an injunction prohibiting Maxill Canada from challenging the validity of a U.S. patent owned by Loops.  In reaching this decision, the Court declined to enforce a no-challenge clause contained in a settlement agreement between the parties. 
Deeth Williams Wall https://www.dww.com/articles/ontario-court-declines-to-enforce-nochallenge-patent-clause

Federal Court Applies Vavilov in Trademark Appeal Federal Court Applies Vavilov in Trademark Appeal

Trademark
March 25, 2020March 25, 20202020-03-25
On March 12, 2020, the Federal Court of Canada (FC) released its decision in Pentastar Transport Ltd v FCA US LLC, 2020 FC 367.  This case represents the first time the FC has determined the standard of review for decisions of the Registrar of Trademarks since the recent Supreme Court of Canada (SCC) case of Canada (Minister of Citizenship and Immigration) v Vavilov, as previously reported by the E-TIPS® Newsletter
Deeth Williams Wall https://www.dww.com/articles/federal-court-applies-vavilov-trademark-appeal

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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