Canadian Technology & IP Law : Canadian Technology Lawyers & Attorneys : Stikeman Elliott Law Firm : IP Law in Toronto, Montreal, Calgary, Ottawa & Vancouver

Last week, the Supreme Court of Canada (SCC) released its decision in Masterpiece Inc. v. Alavida Lifestyles Inc., clarifying the application of confusion analysis under the Trademarks Act. The issue in the case was whether the trade-mark “Masterpiece Living”, proposed in 2005 and subsequently registered by Alavida Lifestyles Inc., a company in the retirement residence industry in Ontario, was confusing with similar unregistered trade-marks used by Masterpiece Inc. in the retirement residence industry in Alberta since 2001.

Applying the test for confusion outlined in Veuve Clicquot Ponsardin v. Boutiques Cliquot Ltée, the SCC stated:

the question is whether, as a matter of first impression, the ‘casual consumer somewhat in a hurry’ who sees the Alavida trade-mark, when that person has no more than an imperfect recollection of any one of the Masterpiece Inc. trade-marks or trade-name, would be likely to be confused; that is, that this consumer would be likely to think that Alavida was the same source of retirement residence services as Masterpiece Inc.

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David Elder -

It is an unfortunate truism that we can often learn from the misfortunes of others, and this is certainly true with respect to privacy breaches.

Beyond the need for increasingly robust security safeguards, recent media coverage of a number of high-profile privacy breaches offer another ready lesson for corporations that collect and store personal information: information that is not retained cannot be the subject of a data breach.

In one recent breach, the victim of a possible data theft noted that records provided to a vendor were apparently not destroyed, although the outsourcing organization believed that they had been. It was these records that were the subject of data theft by an unknown hacker. In another recent breach case, information was stolen from an internal database of customer information that was no longer being used.

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Parties to a patent action often wonder after trial what the outcome would have been if they had just been able to locate that key piece of evidence they know is out there … somewhere …  What if, however, that evidence is actually located after the trial has concluded, but before judgment has been rendered?  That was the situation in Varco Canada Limited v. Pason Systems Corp., 2011 FC 467 and the question on motion before the Court was whether the trial should be re-opened in light of evidence that had been subsequently located.

Although there is a paucity of law in this regard, the Court stated that reopening a trial was a matter of broad discretion but one which must be exercised sparingly and cautiously.  As such, key factors which should be considered on such a motion include: 1) could the evidence, if it had been presented at trial, have had any influence on the result? (an inquiry as to materiality/relevance); 2) could the evidence have been obtained before trial by the exercise of reasonable diligence?; and 3) are there exceptional circumstances that would justify setting aside the “due diligence” test or at least reduce its overall importance in the exercise of discretion.

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