Blogs

  • 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.

  • WannaCrypt Ransomware Attacks on Out-of-Date Systems
    May 15, 2017

    The serious WannaCrypt ransomware worm which ran roughshod over internet connected computers worldwide on Friday and Saturday appears to have been stymied, at least temporarily, by security researchers. In the meantime, Microsoft has provided patches for out-of-date operating systems, apparently as far back as Windows97, which is still running on some legacy systems.
  • Higher Costs Awards for the Winning Party in Federal Court IP Cases
    May 12, 2017

    In Canada, the losing party pays the winner’s litigation costs. For years, costs awards were assessed in accordance with a tariff and were generally inadequate. The Federal Court's recent trend in awarding lump sum costs instead may now be the default, especially when dealing with sophisticated commercial parties. Now, when considering the risks associated with taking a case to trial, litigants should presume that the loser will indemnify the winner for about 25–33 percent of legal fees incurred, plus all reasonable and necessary disbursements.
  • Bill 202: New Alberta Tort for Non-Consensual Distribution of Intimate Images
    May 11, 2017

    Alberta joins those provinces and the Federal government who have enacted protection for intimate images to provide a legal framework to protect those who have such images wrongfully distributed.

  • IP Trials with Less Tribulation: New Federal Court Guidelines Promote Cooperation and Efficiency
    May 03, 2017

    This week's most noteworthy development is not a single case—it is a practice direction that will govern how all complex intellectual property cases will be tried. The new Trial Management Guidelines formalize trial management practices that several members of the Federal Court of Canada have recently implemented on an individual basis. The guidelines are focused on the efficient, expedient and proportionally fair use of trial time for actions scheduled for five days of hearing or more. This aim is achieved by encouraging parties to cooperate wherever possible, use expert evidence efficiently, and dispense with contested motions early. This will result in the effective use of trial time by limiting the focus to unresolved issues.

  • An Obligation to Compensate a Patentee for Infringement May Not End When the Patent Expires. For the First Time, the Federal Court Awards Payment of Profits Made After Patent Expiry
    April 28, 2017

    An infringer's liability to compensate a patent owner may not end when the patent expires. The Federal Court has made a novel award of "springboard" profits, requiring an infringer to account for profits it made even after the patent's expiry. This award recognizes the time it would have taken to develop a product and ramp up sales had the patent not been infringed.
  • Five Pitfalls of Cybersecurity Insurance: Lessons from the United States
    April 24, 2017

    Given the increasing threat of cyberattacks and the corresponding costs, businesses are increasingly considering cybersecurity insurance.  But insurance is only as effective as the scope of the coverage. Though Canadian courts have not yet interpreted insurance policies in the cybersecurity context, American cases highlight five noteworthy pitfalls.
  • Just How Predictable Must the Invention Be to Lose Patent Protection? Depends on the Inventive Concept
    April 21, 2017

    Only a true invention can be patented; a patent claim to an invention is not valid if the invention was obvious. Assessing obviousness can be thought of as bridging the gap between two cliffs: on one side is the existing state of the art and on the other, the “inventive concept”. If a skilled person would have found bridging the gap obvious, or obvious to try, then there was no invention. Litigants have debated the rigidity and rigour of the "obvious to try" approach to assess inventiveness. Although often automatically applied in “unpredictable arts” such as biotech and pharma, there is no strict rule that the "obvious to try" approach must be used, or that when it is used it must follow a particular test. The Federal Court of Appeal has now articulated the inventive concept as the solution the patent teaches. Accordingly, the way the gap is bridged—the obviousness assessment—is flexible. But defining the inventive concept—the cliff at the other side of the gap—is not. And its precise margins often determine the result.

  • On the Ice with Artificial Intelligence
    April 21, 2017

    Taking Wayne Gretzky's famous advice—"skate to where the puck is going, not where it has been"—will get easier for businesses that embrace artificial intelligence (AI). That's the conclusion I drew from a sold-out event entitled, From Big Data to Deep Learning: How Business is Embracing Artificial Intelligence hosted at Bennett Jones. The event featured a stellar panel discussing the impact of AI on business and society. It was moderated by Deepa Kundur, chair of the Division of Engineering Science and professor and director of the Centre for Power & Information, [...]
  • New Non-Resident Speculation Tax in Ontario
    April 20, 2017

    The provincial government announced today that effective April 21, 2017, it is imposing a 15-percent non-resident speculation tax on the purchase or acquisition of interests in residential property located in the Greater Golden Horseshoe. The Greater Golden Horseshoe includes Brant, Dufferin, Durham, Haldimand, Halton, Hamilton, Kawartha Lakes, Niagara, Northumberland, Peel, Peterborough, Simcoe, Toronto, Waterloo, Wellington and York.
  • El Salvador Makes History and Bans All Mining
    April 17, 2017

    On March 29, 2017, El Salvador’s legislature unanimously voted to ban all metallic mining, including for gold, in the Central American country. El Salvador is the first country in the world to impose a blanket ban on mining activities. The question is, will other countries follow suit? Understanding El Salvador’s political justification for the ban and its claimed experience with mining provides important lessons for mining companies, host states, and home states to mitigate the risk of fractious relationships that could lead others to follow El Salvador’s lead.

  • Yes—Copying Photographs from the Internet Can Get You into Trouble
    April 12, 2017

    Although it happens all the time, reproducing photographs found on the internet for use in business is fraught with risk.  Businesses should only copy images where there is clear permission to use them—or face a substantial damages award.
  • Court Interprets Canada's Anti-Spam Law
    April 11, 2017

    There are few businesses who would disagree that Canada's Anti-Spam Law (CASL) is complex and can be confusing. Core prohibitions are extremely broad but equally are exclusions that were put in place by Industry Canada to respond to the substantive feedback received once the Canadian business community began to really assess how to comply with the law.

  • Canada's Stock Exchanges Favour Natural Resource Issuers
    April 10, 2017

    Canada is recognized as the world's leading capital market for natural resource companies. Its stock exchanges boast over half of the world's public mining companies and over one-third of the world's public oil and natural gas companies. Canadian stock exchanges also present a recognized destination for foreign natural resource companies to raise capital—and function as a significant source of acquisition targets and merger partners for international major and mid-cap companies.
  • Canadian Securities Administrators - Update on Cybersecurity
    April 10, 2017

    The most recent information from CSA on cybersecurity is set out in the summary of its roundtable discussion (released April 7, 2017) to explore response to cybersecurity incidents.

  • Corporations are People Too! Ontario Court Confirms that Corporations Have a Right to a Speedy Trial
    April 10, 2017

    Corporate defendants have the right to a speedy trial, without requiring them to prove actual prejudice to their fair trial rights. In R v Stephensons Rental Services, a March 2017 decision of the Ontario Court of Justice, the court, following the Supreme Court’s landmark decision in Jordan, held that the corporate defendant's right to be tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms had been breached, and stayed the charge under the Occupational Health and Safety Act.

  • What is the Cost of Racial Profiling?
    April 10, 2017

    The Ontario Divisional Court says it’s $75,000. In Elmardy v Toronto Police Services Board, a significant decision by the Divisional Court, the three-judge panel awarded a victim of racial profiling damages of $75,000. Specifically, the court awarded $50,000 for the breaches of the Canadian Charter of Rights and Freedoms and $25,000 in punitive damages against Constable Andrew Pak and the Toronto Police Services Board.

  • Why Brand Owners Need to Keep a Paper Trail
    April 07, 2017

    Good evidence wins cases. In a trademark opposition, evidence demonstrating how and for how long a mark has been used in commerce (for example, on hangtags, labels, packaging, signage, invoices and online platforms) can be critical to protecting against threats to the brand. For optimal protection and enforcement, trademark owners should have a protocol to track and record all use of their marks, whether to oppose the registration of similar trademark applications, defend against cancellation proceedings, or enforce rights in litigation.
  • 4 Business Cases to Follow in the Supreme Court’s Spring Term
    April 06, 2017

    The Supreme Court of Canada’s spring term begins on April 18. This term has a lot of interesting criminal cases, but only a few that may be interesting to the business community.
  • Corporate Cybersecurity Can Only Be as Strong as Your Weakest Link
    April 06, 2017

    While corporate executives are increasingly becoming aware of their obligation to be informed of cybersecurity threats and the steps being taken by their company to prevent data breaches, it is equally important for executives to ensure that the employees are educated with respect to cyber threats. The data breach prevention protocol of a company may only be as strong as its weakest link.
  • CSA Proposes New Canadian Derivatives Business Conduct Rules and Provides Update on Derivatives Registration Rules
    April 05, 2017

    On April 4, 2017, the securities regulators of each of the provinces and territories of Canada–the Canadian Securities Administrators (CSA)–published a press release and CSA Notice and Request for Comments relating to Proposed National Instrument 93-101 entitled Derivatives: Business Conduct (the Business Conduct Rules).
  • No Routine Access by CRA to Tax Working Papers Rules the Federal Court of Appeal
    April 05, 2017

    The Federal Court of Appeal has limited the Canada Revenue Agency's (CRA) access to tax accrual working papers that reveal a taxpayer's uncertain tax positions. This case is an important one for every company that has audited financial statements.
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