Federal Court Dismisses Motion for Statutory Damages Under Notice-And-Notice Regime Federal Court Dismisses Motion for Statutory Damages Under Notice-And-Notice Regime

Trademark and Copyright Litigation
March 17, 2021March 17, 20212021-03-17
On February 25, 2021, the Federal Court of Canada (the Court) issued its decision in TBV Productions, LLC v Doe, 2021 FC 181, dismissing a motion by TBV Productions LLC (TBV) to pursue statutory damages against SaskTel, Bell, and Xplornet (the Internet Service Providers (ISPs)) for not fulfilling their notice obligations under the “notice-and-notice” regime set out in sections 41.25 and 41.26 of the Copyright Act.
Deeth Williams Wall https://www.dww.com/articles/federal-court-dismisses-motion-for-statutory-damages-under-noticeandnotice-regime

Federal Court Dismisses Passing Off Claim Relating to the Trademark LOCUST LANE for Wines Federal Court Dismisses Passing Off Claim Relating to the Trademark LOCUST LANE for Wines

Trademark and Copyright Litigation
March 3, 2021March 3, 20212021-03-03
On February 17, 2021, the Canadian Federal Court (the Court) issued its decision in Hidden Bench Vineyards & Winery Inc. v Locust Lane Estate Winery Corp., 2021 FC 156, in which it dismissed an application by Hidden Bench Vineyards & Winery Inc. (“Hidden Bench”) against Locust Lane Estate Winery Corp. (“LLEW”) for passing off in relation to the trademark LOCUST LANE for wines and related services.
Deeth Williams Wall https://www.dww.com/articles/federal-court-dismisses-passing-off-claim-relating-to-trademark-locust-lane-for-wines

The Privacy Commissioner of Canada Weighs in on the Upcoming Review of the Access to Information Act The Privacy Commissioner of Canada Weighs in on the Upcoming Review of the Access to Information Act

Privacy
March 3, 2021March 3, 20212021-03-03
On February 23, 2021, the Office of the Privacy Commissioner of Canada (OPC) released its submission to the Treasury Board of Canada Secretariat expressing views on the statutory review of the Access to Information Act (ATIA) governing the right to access records under the control of federal government institutions.
Deeth Williams Wall https://www.dww.com/articles/privacy-commissioner-of-canada-weighs-on-upcoming-review-of-access-to-information-act

Canadian Privacy Experts Concerned About Federal Government’s Plan to Develop Virtual Passport App Canadian Privacy Experts Concerned About Federal Government’s Plan to Develop Virtual Passport App

Privacy
March 3, 2021March 3, 20212021-03-03
On December 11, 2020, the Canadian federal government awarded IBM Canada a $1.5 million contract for the development and testing of a virtual passport app (the platform) pursuant to the Immigration, Refugees and Citizenship Canada’s (IRCC) Passport Digital Services Project. The announcement generated concern among Canadian privacy experts, who fear that the platform may put users’ personal information at risk.
Deeth Williams Wall https://www.dww.com/articles/canadian-privacy-experts-concerned-about-federal-government%E2%80%99s-plan-to-develop-virtual

Facebook Lifts Restrictions on News Access to Australians After Reaching Deal with Australian Government to Amend Proposed Laws Facebook Lifts Restrictions on News Access to Australians After Reaching Deal with Australian Government ...

Regulatory Law
March 3, 2021March 3, 20212021-03-03
On February 22, 2021, Facebook Inc. (Facebook) announced that it would restore news access and sharing on its platform for Australians after it reached an agreement with the Australian government to amend the proposed News Media and Digital Platforms Mandatory Bargaining Code (the Code).
Deeth Williams Wall https://www.dww.com/articles/facebook-lifts-restrictions-on-news-access-to-australians-after-reaching-deal-australian

The Status of Canadian Trademark Applications: A few steps forward and a few back The Status of Canadian Trademark Applications: A few steps forward and a few back

Trademarks
February 22, 2021February 22, 20212021-03-03
We continue to be asked about what is happening to Canadian trademark applications. This article updates an article we first published in the summer of 2020. There is some progress to report, but it is a story of a few steps forward and a few steps back.
Deeth Williams Wall https://www.dww.com/articles/status-of-canadian-trademark-applications-a-few-steps-forward-and-a-few-back

Supreme Court of Canada Rules That Contracting Parties Have a Duty to Exercise Contractual Discretion in Good Faith Supreme Court of Canada Rules That Contracting Parties Have a Duty to Exercise Contractual Discretion in ...

Litigation
February 17, 2021February 17, 20212021-02-17
On February 5, 2021, the Supreme Court of Canada (the SCC), in Wastech Services Ltd v Greater Vancouver Sewerage and Draining District (2021 SCC 7), held that contracting parties have a duty to exercise contractual discretion in good faith and that this duty “operates in every contract irrespective of the intentions of the parties”.
Deeth Williams Wall https://www.dww.com/articles/supreme-court-of-canada-rules-contracting-parties-have-a-duty-to-exercise-contractual

Government of Canada Launches Consultation on Copyright Term of Protection Government of Canada Launches Consultation on Copyright Term of Protection

Copyright
February 17, 2021February 17, 20212021-02-17
On February 11, 2021, the Government of Canada launched a consultation on how to implement an extended term of copyright protection in Canada in accordance with the Canada-United States-Mexico Agreement (CUSMA).
Deeth Williams Wall https://www.dww.com/articles/government-of-canada-launches-consultation-on-copyright-term-of-protection

Privacy Commissioner of Canada Issues Statement Following Investigation into Clearview AI Privacy Commissioner of Canada Issues Statement Following Investigation into Clearview AI

Privacy
February 17, 2021February 17, 20212021-02-17
On February 3, 2021, the Office of the Privacy Commissioner of Canada (OPC) issued a statement following an investigation into American technology company Clearview AI and its use of facial recognition technology, as previously reported by the E-TIPS® Newsletter here.
Deeth Williams Wall https://www.dww.com/articles/privacy-commissioner-of-canada-issues-statement-following-investigation-into-clearview-ai

Ontario Superior Court of Justice Recognizes New Tort Of Harassment In Internet Communications Ontario Superior Court of Justice Recognizes New Tort Of Harassment In Internet Communications

Litigation
February 17, 2021February 17, 20212021-02-17
On January 28, 2021, the Ontario Superior Court of Justice (the Court) issued its decision in Caplan v Atas, 2021 ONSC 670, where it recognized a new civil tort of harassment in internet communications.
Deeth Williams Wall https://www.dww.com/articles/ontario-superior-court-of-justice-recognizes-new-tort-of-harassment-internet

Federal Court Awards Damages for Copyright Infringement Based on Anti-Piracy Program Report Federal Court Awards Damages for Copyright Infringement Based on Anti-Piracy Program Report

Trademark and Copyright Litigation
February 17, 2021February 17, 20212021-02-17
On January 19, 2021, the Canadian Federal Court (the Court) in Trimble Solutions Corporation v Quantum Dynamics Inc., 2021 FC 63 granted the plaintiffs’ motion for default judgement, finding that the defendants infringed the plaintiffs’ copyright in their 3D modelling and design software (the Software) based on evidence produced using a third-party anti-piracy program integrated in the Software to detect unlicensed use events.
Deeth Williams Wall https://www.dww.com/articles/federal-court-awards-damages-for-copyright-infringement-based-on-antipiracy-program-report

Bill C-11: A Closer Look (Part 2 of 2) Proposed Acts and Proposed Changes to Requirements on Organizations and the Enforcement Regime Bill C-11: A Closer Look (Part 2 of 2) Proposed Acts and Proposed Changes to Requirements on Organization...

Privacy
February 5, 2021February 5, 20212021-04-21
This is Part 2 (see Part 1 here) of a two-part commentary describing some of the major substantive changes to Canada’s privacy law set out in Bill C-11 (the "Bill"), the Digital Charter Implementation Act, 2020.
Deeth Williams Wall https://www.dww.com/articles/bill-c11-a-closer-look-part-2-of-2-proposed-acts-and-proposed-changes-to-requirements-on

Federal Court of Appeal Provides Clarity on File Wrapper Estoppel Federal Court of Appeal Provides Clarity on File Wrapper Estoppel

Patent Litigation
February 3, 2021February 3, 20212021-02-03
On January 20, 2021, the Federal Court of Appeal (FCA) dismissed the appeal in Canmar Foods Ltd. v. TA Foods Ltd., 2021 FCA 7. This was an appeal of the first court decision (previously reported in the E-TIPS® Newsletter here) to interpret the file wrapper estoppel provision, s. 53.1 of the Patent Act, recently introduced into Canadian law.
Deeth Williams Wall https://www.dww.com/articles/federal-court-of-appeal-provides-clarity-on-file-wrapper-estoppel

CRTC Launches Consultation to Seek Canadian Feedback On Addressing Botnet-Facilitated Cyber Attacks CRTC Launches Consultation to Seek Canadian Feedback On Addressing Botnet-Facilitated Cyber Attacks

Cybersecurity
February 3, 2021February 3, 20212021-02-03
On January 13, 2021, the Canadian Radio-television and Telecommunications Commission (CRTC) launched a consultation to seek feedback from Canadians on developing a framework to address botnet activity within Canadian networks.
Deeth Williams Wall https://www.dww.com/articles/crtc-launches-consultation-to-seek-canadian-feedback-on-addressing-botnetfacilitated-cyber

USPTO Releases Report on Trademarks and Patents in China USPTO Releases Report on Trademarks and Patents in China

Trademarks
February 3, 2021February 3, 20212021-02-03
In January 2021, the U.S. Patent and Trademark Office (USPTO) released a report examining the impact of non-market factors on filing trends and IP systems in response to the growing number of “suspect” trademark applications filed in the United States from China.
Deeth Williams Wall https://www.dww.com/articles/uspto-releases-report-on-trademarks-and-patents-china

Supreme Court Of Canada Considers The Duty of Honest Performance In Exercising Contractual Rights Supreme Court Of Canada Considers The Duty of Honest Performance In Exercising Contractual Rights

Technology Contracting
January 20, 2021January 20, 20212021-01-20
On December 18, 2020, the Supreme Court of Canada released its decision in C.M. Callow Inc. v Zollinger, 2020 SCC 45, holding that no party should exercise a contractual right in a dishonest manner. This decision builds upon the SCC’s findings in Bhasin v Hrynew, 2014 SCC 71, where it introduced the general organizing principle of good faith in contract and a duty of honest contractual performance.
Deeth Williams Wall https://www.dww.com/articles/supreme-court-of-canada-considers-duty-of-honest-performance-exercising-contractual-rights

E-TIPS® Newsletter’s “2020: Year in Review” E-TIPS® Newsletter’s “2020: Year in Review”

Intellectual Property
January 20, 2021January 20, 20212021-01-20
Thank you for your readership over the last year and welcome to what we hope will be a promising 2021!  In this year’s first issue of the E-TIPS® Newsletter, we will recap our most noteworthy reports from 2020 covering developments in intellectual property (IP) and Information Technology (IT) law, under the following categories: (1) “COVID-19”, (2) “Supreme Court of Canada Matters”, (3) “Legislative, Treaty and Policy Developments”, (4) “Patents”, (5) “Trademarks”, (6) “Copyright”, (7) “Privacy”, and (8) “IT/Telecommunications”.
Deeth Williams Wall https://www.dww.com/articles/etips%C2%AE-newsletter%E2%80%99s-%E2%80%9C2020-year-review%E2%80%9D

Expedited Examination of (Certain) Canadian Trademark Applications Expedited Examination of (Certain) Canadian Trademark Applications

Trademarks
January 13, 2021January 13, 20212021-01-13
Canada’s Intellectual Property Office (CIPO) announced that, effective December 14, 2020, CIPO began accepting requests for expedited examination of trademark applications associated with medical goods or services related to COVID-19. To be eligible for expedited examination, the application must include at least one of the following types of goods or services:
Deeth Williams Wall https://www.dww.com/articles/expedited-examination-of-certain-canadian-trademark-applications

Federal Court of Appeal of Canada Holds a Trademark Registration is a Defence to Damages Even if Subsequently Expunged Federal Court of Appeal of Canada Holds a Trademark Registration is a Defence to Damages Even if Subseque...

Trademark and Copyright Litigation
December 16, 2020December 16, 20202020-12-16
On December 9, 2020, the Federal Court of Appeal of Canada (FCA) issued its decision in Group III International Ltd v Travelway Group International Ltd, 2020 FCA 210, finding that a trademark registration is a defence to damages or an accounting of profits during the period that it is registered.
Deeth Williams Wall https://www.dww.com/articles/federal-court-of-appeal-of-canada-holds-a-trademark-registration-a-defence-to-damages-even

Canadian Privacy Commissioner Release Results of Investigation into Desjardins Data Breach Canadian Privacy Commissioner Release Results of Investigation into Desjardins Data Breach

Privacy
December 16, 2020December 16, 20202020-12-16
On December 14, 2020, the Privacy Commissioner of Canada released a statement on the findings of the joint investigation of the Office of the Privacy Commissioner (OPC) with the Commission d’accès à l’information du Québec into the security breach at Fédération des caisses Desjardins du Québec (Desjardins) that occurred in May 2019 and affected almost 10 million individuals in Canada and abroad.
Deeth Williams Wall https://www.dww.com/articles/canadian-privacy-commissioner-release-results-of-investigation-into-desjardins-data-breach

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.

E-TIPS is a registered trade-mark of Deeth Williams Wall LLP.