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

David Elder -

In a problematic judgement, the Federal Court of Canada has awarded damages against a bank for the wrongful disclosure by one of its employees of account information in response to a subpoena.

This is only the second case in which the Court has awarded damages for non-compliance with the Personal Information Protection and Electronic Documents Act (PIPEDA); and like the first damage award under the statute, the amount awarded was minimal. The case is also perplexing, because it seems to contradict the reasoning in an earlier decision by the same court, which established that to be eligible for an award of damages, the alleged injury must result directly from a breach of the Act.

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Geoffrey North & Lindsay Gwyer -

In an application pursuant to the Patented Medicines (Notice of Compliance) Regulations, Hoffman-La Roche sought an order preventing the Minister of Health from issuing a notice of compliance to Apotex for the drug mycophenolate mofetil (MMF), an immunosuppressive drug used primarily in organ transplants, until after the expiry of Canadian Patent No. 1,333,285. Seeking early market entry, Apotex on the other hand alleged that the ‘285 patent was invalid on the grounds of lack of utility and obviousness.

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The Internet Corporation for Assigned Names and Numbers (ICANN), the international non-profit organization charged with creating policies for use of the internet, recently approved the internet domain “.xxx” for use specifically by the adult entertainment industry. Companies outside the adult entertainment industry that are concerned about their trade names/trademarks being used in connection with a “.xxx” adult entertainment domain name can apply to opt-out of “.xxx”.

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Geoffrey North and Solene Murphy -

Target Brands Inc. v. Fairweather Ltd. 2011 FC 758

A recent decision by the Federal Court showed once again that there is a high threshold for the granting of interlocutory injunctions.

Pending final disposition of this action, Target sought an interlocutory injunction to restrain the Defendants (Fairweather) from operating a retail store in association with a trade-mark or trade name comprising TARGET or a bull’s-eye design, and from displaying, advertising or using the word TARGET or a bull’s-eye design to direct public attention to Fairweather’s business so as to cause confusion with Target’s business.  

Target, however, failed to convince the Court both that it would suffer irreparable harm if the injunction was not granted and that the balance of convenience favoured the granting of an injunction, and the motion was accordingly dismissed.

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Geoffrey North and Edwin Mok

The Federal Court of Appeal recently released its decision in Eli Lilly and Company v Teva Canada Ltd, confirming the trial court’s finding that Canadian Patent No. 2,209,735 (the 735 patent), which claims a new use for an old medicine that has long been in the public domain (the use of atomoxetine for treating attention deficit hyperactivity disorder (ADHD) in three of its manifestations among all age groups), is invalid. We reported the lower Court’s ruling in a previous blog.

This appeal raised three principle legal issues. Namely, did the Judge err by: (i) misconstruing the patent’s promise by finding an implicit promise that atomoxetine “will work in the longer term”; (ii) requiring too high a standard of proof for utility; and (iii) deciding that Lilly could not rely on the sound prediction of the utility of the invention because Lilly had not disclosed the factual foundation for that prediction in the 735 patent?

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The Ontario Court of Appeal issued a landmark decision in Tucows.Com Co. v. Lojas Renner S.A. (2011 ONCA 548), finding for the first time that internet domain names constitute personal property. The Court ruled in favour of Tucows, a Canadian company, holding that it could bring a claim in Ontario for declaratory relief against a Brazilian company on the basis that a domain name registered to Tucows constituted intangible personal property located in Ontario.

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As a result of the Federal Court’s decision in the infamous Amazon.com case, released October 14, 2010, the Commissioner of Patents has provided revised practice guidelines to Canadian patent examiners in relation to general approaches to examination.

Unfortunately, given that we are currently awaiting a decision on appeal from the Federal Court’s decision, the question begs whether these new guidelines will remain relevant for long.

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David Elder -

As the expected proclamation in force of Canada’s Anti-Spam Legislation nears, the Government recently announced the launch of a new “Fight Spam” website; however, the site currently provides only a high-level overview of the new law, rather than a detailed compliance guide for businesses.

Likely, there will continue to be some uncertainty with respect to the practical application of the new law to specific business scenarios, until the CRTC, the Competition Bureau and the Office of the Privacy Commissioner have had an opportunity to actually apply the law, hopefully providing some guidance to the business community through the ongoing publication of decision summaries or guidelines.

The new website appears to be intended to offer plain-language guidance to consumers and businesses with respect to the general requirements of the new law, offering overviews of the main provisions of the statute and the bodies charged with its enforcement.  The site also includes a series of Frequently Asked Questions, advice as to how individuals and businesses can protect themselves against spam and other electronic threats and links to other resources, such as tips from the Office of Consumer Affairs on how users can recognize and protect themselves against phishing and spyware.

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