E-TIPS

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.

On May 31, 2024, the Supreme Court of Canada (the Court) released its decision in Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, finding that contracting parties can vary or exclude the application of an implied condition under Ontario’s Sale of Goods Act (SGA) by an express agreement in a form of an exclusion clause, without the requirement to include particular “magic words” to be enforceable.

On June 6, 2024, the Office of the Privacy Commissioner of Canada (OPC) tabled its 2023-2024 Annual Report to Parliament on the Privacy Act and the Personal Information Protection and Electronic Documents Act (the Annual Report). The Annual Report summarizes the OPC’s efforts over the past year to protect and promote the fundamental privacy rights of Canadians in the digital era.

On May 18, the Canadian Intellectual Property Office (CIPO) published proposed amendments to the Patent Rules (the Rules), among other regulations, providing details regarding Canada’s new patent term adjustment (PTA) system to take effect on January 1, 2025.

On May 27, 2024, Innovation, Science and Economic Development Canada (ISED) announced that eight additional organizations have undertaken a voluntary commitment in support of the ongoing development and management of artificial intelligence (AI) systems in Canada, becoming new signatories to the Voluntary Code of Conduct on the Responsible Development and Management of Advanced Generative AI Systems (the Code).

On May 29, 2024, the Federal Court (the Court) issued its decision in Red Maple Manufacturing Inc. v Red Maple Bio Inc., 2024 FC 817, setting aside the portion of the Trademarks Opposition Board’s (TMOB’s) decision that ordered the deletion of registered goods from Red Maple Manufacturing’s (RMM’s) trademark registration for RED MAPLE NATURALS Design Mark (the Mark).

On May 24, 2024, member states of the World Intellectual Property Organization (WIPO) approved a new WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (the Treaty), marking the first WIPO Treaty to (a) address the interface between these areas; and (b) include provisions for Indigenous Peoples as well as local communities.

On May 13, 2024, the Ontario Government tabled Bill 194, Strengthening Cyber Security and Building Trust in the Public Sector Act, 2024 (Bill 194) which, if passed, would enact the Enhancing Digital Security and Trust Act, 2024 (EDSTA) and amend Ontario’s public sector privacy legislation, the Freedom of Information and Protection of Privacy Act (FIPPA).

On April 30, 2024, the United States Patent and Trademark Office (USPTO) published a Request for Comments (RFC) regarding the impact of the proliferation of artificial intelligence (AI) on prior art, the assessment of the level of skill/knowledge of a person having ordinary skill in the art (PHOSITA), and determinations of patentability made in view of these evaluations.

On April 22, 2024, the Federal Court (the Court) issued its decision in D.M.C. SRL v Giusti, 2024 FC 605, upholding the Trademarks Opposition Board’s (TMOB’s) decision rejecting D.M.C. SRL’s (DMC’s) opposition to Ermenegildo Giusti’s (the Respondent’s) application to register the trademark GIUSTI PROSECCO (the Mark).

In today’s digital age, seeing is no longer believing. Deepfake technologies are shaking up the legal landscape as Canada grapples with how to catch up to these AI imposters. Deepfakes are hyper-realistic media manipulations created using artificial intelligence (AI), where images, audio, or videos, are either digitally altered or fully generated by AI to convincingly replace one person’s likeness with another.[i] These sophisticated synthetic multimedia manipulations are blurring the lines between reality and fiction.

Over the past few years, regulatory amendments have permitted linking of outside “technical” documents to various regulations administered by Health Canada, especially the Food and Drug Regulations (the Regulations). Although this allows timely updates to technical standards, it also takes important regulatory matters outside of the Canada Gazette process (which permits public comment) and by outsourcing requirements to international bodies, defeats in-Canada democratic oversight of bureaucratic actors. This is part of a process of “outsourcing” Canadian law to external bodies which has been ongoing for some time.

On April 30, 2024, the Ontario Superior Court of Justice (the Court) released its decision in LifeLabs LP v Information and Privacy Commr. (Ontario), 2024 ONSC 2194, dismissing LifeLabs LP’s (LifeLabs) application for judicial review and finding that the Information and Privacy Commissioners of Ontario and British Columbia (ON IPC and BC IPC, respectively) did not err in their application of the law on solicitor-client and litigation privilege, nor breach LifeLabs’ right to procedural fairness.

On April 11, 2024, the Federal Court of Appeal (the Court) released its decision in Steelhead LNG (ASLNG) Ltd. v Arc Resources Ltd., 2024 FCA 67, finding that exploiting the goal, purpose or advantage of a patented invention for commercial benefit does not constitute an infringing “use” under section 42 of the Patent Act.

On May 7, 2024, the Federal Court of Canada (the FC) issued an updated practice notice on “The Use of Artificial Intelligence in Court Proceedings” (the Notice), which amends its prior notice of the same name that was published on December 20, 2023 (as previously reported by the E-TIPS® Newsletter here).

On February 28, 2024, in Open AI, Inc., v Open Artificial Intelligence, Inc., and Guy Ravine No. 4:23-cv-3918-YGR , the US District Court for the Northern District of California (the Court) granted OpenAI Inc’s (OpenAI) motion for a preliminary injunction against Guy Ravine and his company Open Artificial Intelligence Inc. (collectively, Open Artificial Intelligence) prohibiting its use of the mark “Open AI. ”

On April 16, 2024, the Government of Canada released its budget titled “Budget 2024: Fairness for Every Generation” (Budget 2024), which includes substantial financial investment in artificial intelligence (AI) with the goal of boosting innovation, raising productivity and accelerating economic growth to secure Canada’s AI advantage.

On April 9, 2024, in Promotion In Motion Inc. v Hershey Chocolate & Confectionery LLC, 2024 FC 556, the Federal Court of Canada (FC) upheld a decision of the Trademarks Opposition Board (TMOB) finding that there was a likelihood of confusion between the applicant’s SWISSKISS trademarks and Hershey’s KISSES and/or KISS trademarks for chocolate.

On April 16, 2024, the Federal Court of Appeal (the Court) issued its decision in Eli Lilly Canada Inc v Apotex Inc, 2024 FCA 72, upholding a decision of the Federal Court (FC) that found Canadian Patent No. 2,226,784 (the Patent) from Eli Lilly Canada Inc. et al. (the appellants) to be invalid for overbreadth and insufficiency.

On March 27, 2024, the Superior Court of Québec (the Court) issued its decision in Fonds GB c 9451-3082 Québec Inc., 2024 QCCS 1122, granting Fonds GB’s application for an interlocutory injunction enjoining 9451-3082 Québec Inc. (9451 Québec) from using the trade name and trademark “Café Constance”.