Louis Armstrong and Jim Morrison in Concert in Canada Louis Armstrong and Jim Morrison in Concert in Canada

Copyright
September 28, 2021September 28, 20212021-09-29
Louis (Satchmo) Armstrong was an iconic jazz musician. Jim Morrison, was an iconic rock musician. They share an interesting tie relating to Canada, even though history does not record them ever having had a joint musical appearance.
Deeth Williams Wall https://www.dww.com/articles/louis-armstrong-and-jim-morrison-concert-canada

Federal Court of Appeal Revives the Certification of a Reverse Class Action in File-Sharing Copyright Infringement Case Federal Court of Appeal Revives the Certification of a Reverse Class Action in File-Sharing Copyright Inf...

Trademark and Copyright Litigation
September 28, 2021September 28, 20212021-09-30
On September 8, 2021, Canada’s Federal Court of Appeal (FCA) in Salna v. Voltage Pictures, LLC, 2021 FCA 176, unanimously reversed the Federal Court’s (FC) decision dismissing Voltage Pictures, LLC’s (Voltage) motion for certification of a reverse class action proceeding alleging file-sharing copyright infringement. The FCA acknowledged the novelty of the proposed reverse class action and noted that "the law must adapt to the evolving digital environment, the channels through which artistic endeavour is expressed and the means by which copyright may be infringed".
Deeth Williams Wall https://www.dww.com/articles/federal-court-of-appeal-revives-certification-of-a-reverse-class-action-filesharing

Alberta Court Recognizes the “Public Disclosure of Private Facts” Privacy Tort Alberta Court Recognizes the “Public Disclosure of Private Facts” Privacy Tort

Privacy
September 28, 2021September 28, 20212021-09-29
On September 16, 2021, the Court of Queen’s Bench of Alberta (the Court) issued its decision in ES v Shillington, 2021 ABQB 739 (Shillington), recognizing, in Alberta, the tort of Public Disclosure of Private Facts.
Deeth Williams Wall https://www.dww.com/articles/alberta-court-recognizes-%E2%80%9Cpublic-disclosure-of-private-facts%E2%80%9D-privacy-tort

Irish Data Protection Commission Fines WhatsApp €225 Million For Breaching Data Protection Regulations Irish Data Protection Commission Fines WhatsApp €225 Million For Breaching Data Protection Regulations

Privacy
September 28, 2021September 28, 20212021-09-29
On September 2, 2021, the Irish Data Protection Commission (DPC) announced that it adopted an infringement decision against WhatsApp Ireland Ltd. (WhatsApp), issuing a €225 million fine against WhatsApp for breach of the European Union’s General Data Protection Regulation (EU GDPR). The DPC found that WhatsApp breached its transparency obligations and provided insufficient detail about their data sharing and processing operations, infringing articles 5(1)(a), 12, 13 and 14 of the EU GDPR.
Deeth Williams Wall https://www.dww.com/articles/irish-data-protection-commission-fines-whatsapp-%E2%82%AC225-million-for-breaching-data-protection

Federal Court Of Canada Grants Expungement of NORSTEEL Trademark Federal Court Of Canada Grants Expungement of NORSTEEL Trademark

Trademark and Copyright Litigation
September 15, 2021September 15, 20212021-09-15
On September 8, 2021, the Federal Court of Canada (the Court) issued its decision in Norsteel Building Systems Ltd. v Toti Holdings Inc., 2021 FC 927, in which it granted an application by Norsteel Building Systems Ltd. (NBS) to expunge the trademark NORSTEEL from the register.
Deeth Williams Wall https://www.dww.com/articles/federal-court-of-canada-grants-expungement-of-norsteel-trademark

The Office Of The Information And Privacy Commissioner Of Ontario Responds To The Province’s Proposal For Private Sector Privacy Law Reform The Office Of The Information And Privacy Commissioner Of Ontario Responds To The Province’s Proposal For...

Privacy
September 15, 2021September 15, 20212021-09-15
On September 7, 2021, the Office of the Information and Privacy Commissioner of Ontario (IPC) issued its response to the Ontario government’s white paper on proposals for a provincial private sector privacy law, as previously reported by the E-TIPS® Newsletter here.
Deeth Williams Wall https://www.dww.com/articles/office-of-information-and-privacy-commissioner-of-ontario-responds-to-province%E2%80%99s-proposal

US Federal Court Rules AI Cannot Be An “Inventor” Under US Patent Law US Federal Court Rules AI Cannot Be An “Inventor” Under US Patent Law

Patents
September 15, 2021September 15, 20212021-09-15
On September 2, 2021, the United States District Court for the Eastern District of Virginia (the Court) in Thaler v Hirshfeld, No. 1:20-cv-903 held that an artificial intelligence (AI) machine cannot be an “inventor” under current US patent law.
Deeth Williams Wall https://www.dww.com/articles/us-federal-court-rules-ai-cannot-be-an-%E2%80%9Cinventor%E2%80%9D-under-us-patent-law

Federal Court Of Canada Denies Anti-Suit Injunction In Patent Litigation Case Federal Court Of Canada Denies Anti-Suit Injunction In Patent Litigation Case

Patent Litigation
September 15, 2021September 15, 20212021-09-15
On July 21, 2021, the Federal Court of Canada (the Court) issued its decision in Seismotech Safety Systems Inc. v Forootan, 2021 FC 773, refusing to grant Seismotech Safety Systems Inc. (Seismotech) an ex parte anti-suit injunction to prevent Mr. Iradj Forootan from starting or continuing litigation in respect of six Canadian patents in any other court. The Court noted that an anti-suit injunction is an extraordinary and discretionary remedy that should only be granted rarely, given its impact on judicial comity.
Deeth Williams Wall https://www.dww.com/articles/federal-court-of-canada-denies-antisuit-injunction-patent-litigation-case

Federal Court Of Canada Grants Default Judgment For Copyright Infringement In Relation To The Toronto Regional Real Estate Board Multiple Listing Service Federal Court Of Canada Grants Default Judgment For Copyright Infringement In Relation To The Toronto Reg...

Trademark and Copyright Litigation
September 15, 2021September 15, 20212021-09-15
On July 12, 2021, the Federal Court of Canada (the Court) in Toronto Regional Real Estate Board v R E Stats Inc. (Redatum), 2021 FC 735, granted the Toronto Regional Real Estate Board’s (TRREB) motion for default judgment for copyright infringement relating to the TRREB Multiple Listing Service and related online systems (TRREB MLS® System), awarding $50,000 in damages.
Deeth Williams Wall https://www.dww.com/articles/federal-court-of-canada-grants-default-judgment-for-copyright-infringement-relation-to

Federal Court of Canada Awards Over $29M in Statutory Damages for Copyright Infringement and Finds Defendants Induced Infringement Federal Court of Canada Awards Over $29M in Statutory Damages for Copyright Infringement and Finds Defend...

Trademark and Copyright Litigation
September 1, 2021September 1, 20212021-09-01
On August 10, 2021, the Federal Court of Canada (the Court) issued its decision in Bell Canada v L3D Distributing Inc., 2021 FC 832, in which it granted the plaintiffs’ motion for default judgement, awarding over $29 million in statutory damages for copyright infringement relating to pre-loaded set-top boxes and internet protocol television (IPTV) services, and finding the defendants knowingly induced infringement. This decision appears to be the first time the Court has applied the common law inducement test in the context of copyright infringement.
Deeth Williams Wall https://www.dww.com/articles/federal-court-of-canada-awards-over-29m-statutory-damages-for-copyright-infringement-and

OSFI Updates Technology and Cyber Security Incident Reporting Advisory OSFI Updates Technology and Cyber Security Incident Reporting Advisory

Cybersecurity
September 1, 2021September 1, 20212021-09-01
On August 13, 2021, the Office of the Superintendent of Financial Institutions (OSFI) issued an updated Technology and Cyber Security Incident Reporting Advisory (Advisory) governing the requirements for federally regulated financial institutions (FRFIs) in Canada to report technology and cyber security incidents to OFSI. OSFI is an independent federal government agency that regulates and supervises FRFIs, including all banks, insurance companies and federally incorporated or registered trust and loan companies.
Deeth Williams Wall https://www.dww.com/articles/osfi-updates-technology-and-cyber-security-incident-reporting-advisory

Overbreadth Confirmed as a Valid Ground of Patent Invalidity Overbreadth Confirmed as a Valid Ground of Patent Invalidity

Patent Litigation
September 1, 2021September 1, 20212021-09-01
On July 28, 2021, the Federal Court of Appeal of Canada (the Court) issued a decision in the case of Seedlings Life Science Ventures, LLC v. Pfizer Canada ULC, 2021 FCA 154. In this appeal, Seedlings Life Science Ventures, LLC (Seedlings) challenged the Federal Court’s finding that the claims at issue of Seedling’s patent were invalid for overbreadth.
Deeth Williams Wall https://www.dww.com/articles/overbreadth-confirmed-as-a-valid-ground-of-patent-invalidity

Federal Court of Appeal Dismisses Bauer’s Appeal in Patent Infringement Case, Clarifies Scope of Section 53.1 Federal Court of Appeal Dismisses Bauer’s Appeal in Patent Infringement Case, Clarifies Scope of Section ...

Patent Litigation
September 1, 2021September 1, 20212021-09-01
On August 12, 2021, Canada’s Federal Court of Appeal (FCA) in Bauer Hockey Ltd. v Sport Maska Inc. (CCM Hockey), 2021 FCA 166, upheld the Federal Court’s (FC) finding that the claims in issue regarding Bauer Hockey Ltd.’s (Bauer) patent were invalid for obviousness, as previously reported by the E-TIPS® Newsletter here.
Deeth Williams Wall https://www.dww.com/articles/federal-court-of-appeal-dismisses-bauer%E2%80%99s-appeal-patent-infringement-case-clarifies-scope

Examination Delays in Canadian Trademark Applications: The Snail Pauses Examination Delays in Canadian Trademark Applications: The Snail Pauses

Trademarks
August 17, 2021August 17, 20212021-08-17
Significant delays in examination of Canadian trademark applications continue, both for reasons related and unrelated to the pandemic. Backlogs in first examination of most applications are getting worse, with first examination ranging from 16-32 months from filing or more. It is like watching a snail pause to catch its breath.
Deeth Williams Wall https://www.dww.com/articles/examination-delays-canadian-trademark-applications-snail-pauses

Supreme Court of Canada Addresses Limitation Periods and Discoverability in Unanimous Decision Supreme Court of Canada Addresses Limitation Periods and Discoverability in Unanimous Decision

Litigation
August 17, 2021August 17, 20212021-08-17
On July 29, 2021, the Supreme Court of Canada (SCC) in Grant Thornton LLP v New Brunswick, 2021 SCC 31, clarified that a claim is discovered, and the limitation period begins to run, when the plaintiff has actual or constructive knowledge “of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn”.
Deeth Williams Wall https://www.dww.com/articles/supreme-court-of-canada-addresses-limitation-periods-and-discoverability-unanimous

Supreme Court of Canada Upholds No Mandatory Tariff for York University Supreme Court of Canada Upholds No Mandatory Tariff for York University

Trademark and Copyright Litigation
August 17, 2021August 17, 20212021-08-17
On July 30, 2021, in York University v Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32, the Supreme Court of Canada (SCC) unanimously dismissed an appeal of the decision of the Federal Court of Appeal (as previously reported by the E-TIPS® Newsletter here), upholding the finding that the tariff in question was not mandatory, nor enforceable, against York University (York) since York chose not to be bound by the license.
Deeth Williams Wall https://www.dww.com/articles/supreme-court-of-canada-upholds-no-mandatory-tariff-for-york-university

Ontario Superior Court of Justice Strikes Claim in Class Action Alleging Misappropriation and Misuse of Personal Information Stemming from Capital One’s Data Breach Ontario Superior Court of Justice Strikes Claim in Class Action Alleging Misappropriation and Misuse of P...

Privacy
August 17, 2021August 17, 20212021-08-17
On August 4, 2021, the Ontario Superior Court of Justice (the Court) issued its decision in Del Giudice v Thompson, 2021 ONSC 5379, striking the plaintiffs’ Fresh as Amended Statement of Claim (the Claim) and dismissing its motion to certify a class action claim for data misappropriation and misuse stemming from the 2019 data breach of personal information from Capital One.
Deeth Williams Wall https://www.dww.com/articles/ontario-superior-court-of-justice-strikes-claim-class-action-alleging-misappropriation-and

Trademarks Opposition Board of Canada Considers Estoppel by Convention in Confusion Analysis Trademarks Opposition Board of Canada Considers Estoppel by Convention in Confusion Analysis

Trademark and Copyright Litigation
August 17, 2021August 17, 20212021-08-17
On July 15, 2021, in Symantec and Veritas Technologies v Det Norske Veritas, 2021 TMOB 143, the Trademarks Opposition Board (TMOB) of Canada rejected an opposition to the trademark application for DET NORSKE VERITAS for software based on confusion with the opponent’s VERITAS trademark for software.
Deeth Williams Wall https://www.dww.com/articles/trademarks-opposition-board-of-canada-considers-estoppel-by-convention-confusion-analysis

In A Historic Move, South Africa and Australia Recognize that Artificial Intelligence can be Recognized as an Inventor In A Historic Move, South Africa and Australia Recognize that Artificial Intelligence can be Recognized a...

Patents
August 4, 2021August 4, 20212021-08-04
On July 30 2021, the Federal Court of Australia released a landmark decision in Thaler v Commissioner of Patents [2021] FCA 879, finding that artificial intelligence can be an inventor for the purposes of the Australian Patents Act 1990 (Cth). The historic decision came just days after South Africa became the first country to defy the status quo and award a patent recognising an AI as an inventor (ZA2021/03242).
Deeth Williams Wall https://www.dww.com/articles/a-historic-move-south-africa-and-australia-recognize-artificial-intelligence-can-be

Federal Court of Canada Rejects Survey Evidence in Trademark Appeal Federal Court of Canada Rejects Survey Evidence in Trademark Appeal

Trademark and Copyright Litigation
August 4, 2021August 4, 20212021-08-04
In a recent decision in Tokai of Canada Ltd v Kingsford Products Company, LLC, 2021 FC 782, involving the issue of whether two trademarks were confusing, the Federal Court of Canada (the Court) rejected the appellant’s survey evidence consisting of an online survey, finding it deficient, in that it failed to simulate a consumer’s imperfect recollection at the time when they encounter the products and the appellant’s trademark in the marketplace.
Deeth Williams Wall https://www.dww.com/articles/federal-court-of-canada-rejects-survey-evidence-trademark-appeal

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