Blogs

  • Tundra Helps Entrepreneurs Market Near-Ready Innovative Technology
    June 23, 2017

    Calgary-based Tundra Process Solutions Ltd. recently launched an innovative program designed to help Alberta's best and brightest entrepreneurs fast track the commercialization of new products and services that aim to solve industry's most pressing challenges. The Acceleration Centre for Entrepreneurs, or ACE, is aimed at entrepreneurs who have near market-ready technology, or are keen to get involved with one, who need a boost to reach their full potential. All value-added technologies are looked at, particularly those with a focus on reducing greenhouse gas emissions and improving the environment. 
  • Captain Morgan Defeats Admiral Nelson in a Rum Branding Battle
    June 22, 2017

    The victory in the fight between two rum competitors demonstrates that unregistered trade dress rights are alive and well in Canada, admissible survey evidence remains a useful tool for proving confusion, and a competing product that has experienced quality issues can tip the scale in favour of a depreciation of goodwill claim.
  • Proposed Changes to U.S. Sanctions Against Russia
    June 22, 2017

    On June 15, 2017, the U.S. Senate voted 98-2 in favour of new sanctions against Russia in the face of express opposition from President Trump's administration. The proposed law includes significant changes to the current U.S. sanctions regime against Russia. In view of the overwhelming bi-partisan support in the Senate, the proposed law is likely to be approved by the House of Representatives and, if it attains anything close to the level of support received in the Senate, it would be sufficient to override a Presidential veto.

  • A Post-U.S. TPP? Taking Stock and Looking Ahead
    June 20, 2017

    May 2017 may have been a turning point for the Trans Pacific Partnership (TPP) Agreement entering into force. After the US withdrawal from the Agreement in January 2017, the remaining "TPP-11" countries openly questioned whether there remained a sufficient foundation to maintain the multi-faceted trade liberalization consensus that took seven years to negotiate, largely under U.S. leadership. After meetings in May 2017, it appears that there is a new willingness among the major economies in the TPP-11 to stay the course without US involvement.

  • Keeping up with the Convention: Ontario Modernizes Its International Commercial Arbitration Regime
    June 20, 2017

    A new statutory regime governing international commercial arbitration came into effect in Ontario in March 2017, with the International Commercial Arbitration Act, 2017, SO 2017, c 2, replacing the International Commercial Arbitration Act, RSO 1990, I.9  The 2017 Act should interest practitioners and businesses alike. It clarifies and harmonizes Ontario’s statutory framework for international commercial arbitration, ensuring that Ontario continues to be an attractive and modern dispute resolution forum.
  • Angels Visit Calgary for Common Docs Project
    June 19, 2017

    Angel investments in Canada increased again in 2016, with angel groups frequently participating in larger syndicated deals and follow-on investments. The National Angel Capital Organization's (NACO) seventh annual Report on Canadian Angel Investing Activity found that angel groups made 418 investments, amounting to over $157.2 million. Of the deals reported, average deal size was $1.7 million.

  • Federal Court Strikes Patent Infringement Action Where Plaintiff Could Not Articulate How Its Rights Were Infringed
    June 16, 2017

    A patent owner cannot sue in the hopes that the necessary facts to support infringement will emerge during discovery. From the outset, a plaintiff must be able to frame its rights and how those rights have been infringed. Where a pleading broadly and generally asserted that a number of the defendant's systems infringed more than 150 claims of 4 patents, the court struck it out for disclosing no reasonable cause of action and constituting an abuse of process.
  • Trade Remedies in the Age of Trump: Impact on Canadian Businesses
    June 13, 2017

    The election of U.S. President Donald Trump has heralded a new protectionist era of international trade. Since Trump's inauguration, the U.S. has withdrawn from the Trans-Pacific Partnership agreement, initiated discussions regarding NAFTA renegotiation, issued executive orders to ratchet up collection of customs duties and enforcement of trade remedy actions, and has begun examining strategies to ignore unfavourable WTO rulings. Far from being an outlier, this "My Country First" stance is increasingly reflected in markets around the world.

  • Tips to Set Your Business up for Successful IP Litigation
    June 09, 2017

    Delay in asserting IP rights can be detrimental to obtaining quick injunctive relief, and evidentiary gaps can make your case a non-starter. It is therefore important for a business to be prepared to advance claims against infringers instantly. This week we equip you with tips to move your business to the ready position.
  • Are Lawyers' Notes Privileged?
    June 08, 2017

    A recent English decision on privilege has cast doubt on the legal protection provided to lawyers' work product when assisting corporate clients with internal investigations. In The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd, [2017] EWHC 1017 (QB), the English High Court held that external lawyers’ interview notes from an internal corporate fraud investigation were not protected by privilege and had to be disclosed to the investigating government agency.
  • Lawyers' Opinions Matter When a Will Is Prepared
    June 08, 2017

    When a Will is challenged on the basis of allegations of undue influence, incapacity, or suspicious circumstances, the court will look at various factors to decide if the Will should be followed or declared invalid. These factors include...
  • Relief as Private Right of Action Suspended Under Canada's Anti-Spam Law (CASL)
    June 08, 2017

    By way of an Order in Council dated June 2, 2017, the government of Canada has indefinitely delayed the coming into force of the private right of action under Canada's Anti-Spam Law (CASL).
  • Four Key Takeaways from the Lift Cannabis Expo
    June 07, 2017

    The Lift Cannabis Expo returned to Toronto last weekend following a wildly successful first year in 2016. The first Toronto and Vancouver events attracted global attention and showcased the professionalism underlying Canada’s rapidly growing cannabis industry. Given last year’s success and Canada’s federal government nearing cannabis legalization for recreational use, Lift decided to elevate its Lift Cannabis Expo for 2017. With an additional day of programs, over 50 percent more exhibitor space and a new cannabis landscape to examine, the event exceeded expectations once again.
  • Regulatory Competitiveness of Petrochemical Projects in Alberta
    June 07, 2017

    On June 6, 2017, Brad Gilmour, Head of the Regulatory Department of Bennett Jones, spoke at the Petrochemical Conference organized by the Canadian Energy Resources Institute. As part of the Executive Panel focusing on the perceptions of industry, Mr. Gilmour discussed the overall regulatory competitiveness of Alberta's petrochemical projects.

  • No Appeal of BP Canada Decision on Working Papers, Announces CRA
    June 05, 2017

    The Canada Revenue Agency (CRA) has announced that it will not seek leave to appeal the Federal Court of Appeal's decision in the BP Canada case. This means that the Court's decision to deny the CRA general and unrestricted access to a company's audit working papers that reveal uncertain tax positions will stand and the CRA will not have access to the papers solely as a road map to guide its audit activity. However, the CRA can still obtain these papers through a specific inquiry under its broad statutory powers to obtain information or documents that are relevant to a CRA audit. Overall, this is a welcome development that confirms the balance that the Federal Court of Appeal struck in its decision. For more on that decision, read my blog on the case here.
  • Government Announces Sweeping Changes to Labour and Employment Laws in Alberta
    June 02, 2017

    In March this year, the Alberta government announced its intention to "modernize" the province's employment and labour laws. On March 28, 2017, we advised that two of the key changes being considered to Alberta's labour laws (which govern employer-union relations in the province) were the introduction of automatic card certification (allowing for certification of bargaining units in a workplace without a certification vote among affected employees) and binding first contract arbitration once an employer becomes certified.Ten weeks after announcing its "modernization" plan and requesting input from the public, the NDP government introduced Bill 17, The Fair and Family-Friendly Workplaces Act, on May 24, 2017.

  • US Supreme Court Ruling on Exhaustion of Patent Rights is Welcome News for Canadian Exporters of Refurbished Goods
    June 02, 2017

    In the United States, once a patentee has sold its product—whether domestically or internationally—its patent rights in that product are exhausted; the patentee can no longer use patent law to control refurbishing or resale of those products in the marketplace. Even with contractual limitations on resale or importation, the exhaustion of patent rights means that a patentee cannot sue the purchaser or subsequent user for infringement. The Impression Products decision provides comfort to Canadian exporters that the sale of products in the United States for re-use or resale will not give raise to a claim for patent infringement. There are, however, limitations to this principle in Canada. While purchasers of patented goods can resell and repair them, the goods themselves cannot be reproduced. This particularly applies to self-replicating technologies like seeds.

  • Canadian Innovation: A Case for Confidence
    May 29, 2017

    Bennett Jones recently co-hosted the Startup Canada Innovation Forum presented by Startup Canada’s Private Sector Advisory Committee. The event was well attended by influential corporate leaders, high-growth entrepreneurs and government decision makers among others. [...]
  • Evidence of Actual Confusion Is Not Determinative in Trademark Infringement Cases
    May 26, 2017

    To succeed in a trademark infringement case, a plaintiff must prove a likelihood of confusion—that a casual consumer would likely be confused into thinking the source of the defendant's products or services is the same as or associated with the plaintiff.  Evidence of actual consumer confusion is not required.  And when evidence of actual confusion is presented, it does not trump the other factors; it is just one factor to be weighed in the confusion analysis.
  • Cybersecurity Lessons from the United States: A Guide for Directors and Officers
    May 23, 2017

    The recent global ransomware attack (WannaCry) was yet another reminder of the increased threat posed by cyber breaches. While cybersecurity attacks are inevitable, organizations (and their directors and officers) may still be liable to the extent they failed to take reasonable steps to prevent the attack, or failed to respond appropriately to the attack.
  • New Funding Framework for DB Pension Plans Announced
    May 23, 2017

    On May 19, 2017, the Ontario Government announced that it is implementing a new funding framework for defined benefit (DB) pension plans in Ontario. Highlights include...
  • Transparency Initiatives in the Extractive Sector: ESTMA Reporting Deadline Approaching in Canada and Setbacks in the United States
    May 18, 2017

    The May 30, 2017, reporting deadline under the Extractive Sector Transparency Measures Act (ESTMA) is fast approaching. This annual reporting deadline under ESTMA applies to entities that: 1) are listed on a Canadian exchange or meet the threshold size requirements (based on assets and revenues); 2) are developing oil, gas and minerals (Reporting Entities); and 3) have a December 31 financial year-end.

  • Unique but Not Distinctive–Colour and Shape Trademark Applications Rejected for Asthma Inhalers
    May 18, 2017

    Trademark protection for the shape and colour of pharmaceutical products remains elusive. Even if the appearance of a tablet or inhaler is unique, a trademark registration will be rejected without evidence that physicians, pharmacists and patients relate the trademark to a single source and use the mark to make prescribing, dispensing and purchasing choices.
  • Alberta Government to Strengthen Powers Related to Securities Investigations
    May 16, 2017

    On Monday, May 8, 2017, the Finance Minister introduced Bill 13: Securities Amendment Act, 2017. As described to the media, and during First Reading, the Bill aims to strengthen investor protection by amending and updating the Securities Act, RSA 2000, c S-4, to clarify and bolster available enforcement and investigatory powers.

  • No Charges by ISP for Performing its Duties Under the Notice and Notice Regime
    May 16, 2017

    Unlike many countries which provide an effective "notice and take down" remedy for copyright owners whose works are wrongly posted on Internet sites, Canada has implemented a "notice and notice" regime. In Voltage Pictures, LLC v John Doe, 2016 FC 881, the Federal Court interpreted some aspects of that regime in a proposed reverse class action suit brought by several parties against a John Doe defendant. The issue of a claim by the ISP for reasonable compensation for the services that the innocent third party would be obligated to provide were addressed by the Federal Court of Appeal in Voltage Pictures, LLC v John Doe, 2017 FCA 97.

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