Intellectual Property Rights
Intellectual Property Rights: Abstract property rights owned by persons who have rights in the use of the property.
Copyright:
- Right to “copy” a literary or artistic work (includes software)
- The moment you create something that is creative (you own it) (second you write a code, song, etc. it is copyrighted and you own it, do not need to register it)
- Lasts for the life of the author + 50 years
Publishing work on the internet does not make the work “public domain”
“Fair Dealing” defence – reproduction for the purpose of criticism or private study, but need to cite author.
Trademark
- a word (or words), a design, or a combination of these, used to identify the goods or services or brand of a person or organization.
- Logos, slogans, names of company
Protects name/ attributes that promote a brand - Must register trademark: Good for 15 years and renewable every 15 years.
- “Passing Off”: The tort for breaching trademark – can become an issue online.
- Domain names: Cybersquatting.
Patents
- Exclusive right to invention for 20 years;
- Scientific or technological advancements
- Inventor must make the invention available to the public, by filing a description so that it can be duplicated once the patent expires.
- Must “file the patent” – they are approved as long as requirements are met, then people can challenge them as unenforceable.
- Business methods are patentable
- Factoring processes (ways of manufacturing that make processes more simple/ efficient)
- Patents can’t be on “ideas”, they must be novel, useful, ingenious. Must have sufficient proof at priority date.
Invalid – if it is obvious, if it already exists
Jurisdiction
Timing of acceptance – where does acceptance occur?
Wherever the receiver is located
Courts will take jurisdiction over a matter if:
- Traditional Factors
- There is a “Real and Substantial Connection” to the Jurisdiction:
- Forum Non Conveniens:
Traditional Factors:
Defendant’s presence in the jurisdiction or consent to submit to the court’s jurisdiction.
There is a “Real and Substantial Connection” to the Jurisdiction:
- Presumptive connecting factors:
- The Defendant is domiciled or resident in the province; (Lives there)
- The defendant carries on business in the province;
- Physical something in the province (employees, products)
- The tort was committed in the province; or
- A contract connected with the dispute was made in the province.
Forum Non Conveniens:
Even if the court has jurisdiction over the matter, it can decline to exercise its jurisdiction if another jurisdiction would be clearly more convenient or appropriate:
Forum non conveniens factors:
Service of documents
Availability of Witnesses
Enforcement of Judgment
Avoidance of multiplicity of actions
Standing
Applicable law
Forum Non Convenience Enforcement
- There is no obligation for one jurisdiction to recognize the judgment of another jurisdiction. Questions arise to its legitimacy, including:
- Was the judgment made in the appropriate forum?
- Was the judgment legitimately obtained?
- Does the judgment offend against either natural justice or public policy?
- Need to apply to the court in the jurisdiction where assets reside and request recognition, or start a new action and seek judgment.
Privacy/ Anti-SPAM
Privacy: Personal Information Protection and Electronic Documents Act, S.C. 2000 c. 5
Canadian Anti-Spam Legislation (“CASL”):
- CASL was created in 2014 to reinforce best practices in email marketing and combat spam and related issues.
- CASL Consent – Express consent
CASL Consent - Implied
- Implied Consent (section 10(9)/10(10) of CASL), will usually be due to an “existing business relationship”, which includes:
1.The purchase or lease of a product, good or service within the two-year period immediately before the day on which the message is sent.
2.Acceptance of a business, investment or gaming opportunity within the time frame of (1), above.
- Bartering of anything mentioned in (1);
- Written contract entered between the parties that is currently in existence or expired during the time period in (1)
- Inquiry or application within six-month period immediately before the day on which the message is sent.
