Posts from ‘Canada’
In Paul Cheung et al. v. Target Event Production Ltd. (2010 FCA 255), the Federal Court of Appeal (“FCA”) allowed in part an appeal made by Paul Cheung and Lions Communications Inc. (collectively “Lions”) and dismissed a cross-appeal made by Target from a decision rendered of the Federal Court (“FC”) (2010 FC 27). The FCA upheld the FC’s finding that Lions infringed Target’s copyright in certain documents and passed off its trade-marks contrary to s. 7(b) of the Trade-marks Act, and also held that there were no grounds for rejecting the FC’s findings with respect to the joint and several liability of Cheung. The FCA rejected Lions’ argument that Target had failed to fulfill the damage requirement set out in the test for the tort of passing off, holding that use of a trade-mark causing loss of control by the owner is sufficient to establish damage. In partially allowing the appeal, the Court amended the terms of the injunction issued by the FC and the form of costs granted. Continue Reading
In Rivett v. Monsanto Canada Inc. (2010 FCA 207), the Federal Court of Appeal (“FCA”) unanimously allowed Rivett’s and Janssens’ (Appellants) appeals, in part, from their Federal Court (“FC”) decisions, 2009 FC 317 and 2009 FC 318 respectively. The FCA held the FC had erred in calculating Monsanto Canada Inc.’s (Monsanto) award of profits when applying the differential profit approach. Monsanto cross-appealed on several grounds, including the FC’s choice to apply the differential profit approach in calculating an award of profits, and the use of conventional soybeans as a comparator. The FCA dismissed Monsanto’s arguments. Continue Reading
In Novo Nordisk Canada Inc. v. Cobalt Pharmaceuticals Inc., the Federal Court (“FC”) dismissed Novo Nordisk Canada Inc.’s (“Novo”) application for an order to prohibit the Minister of Health (“Minister”) from issuing a Notice of Compliance to Cobalt Pharmaceuticals Inc. (“Cobalt”) until the expiration of Canadian Patent No. 2,111,851 (“the ’851 patent”) for a compound named repaglinide useful for type 2 diabetes treatment. The FC concluded that one of Cobalt’s allegations of invalidity is justified. Continue Reading
In Worldwide Diamond Trademarks Limited v. Canadian Jewellers Association (2010 FC 309), the Federal Court of Canada (“FC”) dismissed an appeal under s. 56 of the Trade-marks Act (“the Act”) by Worldwide Diamond Trademarks Ltd. (“Applicant”) from a decision of the Registrar of Trade-marks (sitting as the Trade-marks Opposition Board) dismissing the Applicant’s three applications under s. 12(1)(b) of the Act for being clearly descriptive of their wares and services.
In April 2004, the Applicant applied to register three trade-marks (CANADIAN DIAMOND REPORT, CANADIAN DIAMOND CERTIFICATE, CANADIAN DIAMOND APPRAISAL) in association with diamonds, diamond certificates and diamond appraisals; diamond cloths, magnifying loops; point of purchase countertop displays; posters; and pens; and diamond appraisal services. The Applicant disclaimed exclusive use of virtually all descriptive words as well as the phrase “A diamond that is mined, cut, and polished in Canada” apart from the mark. In September 2005, the Canadian Jewellers Association (“Respondent”) opposed. The issue was whether the addition of certain key words to the descriptive phrases rendered the marks non-descriptive.