snIP/ITs Insights on Canadian Technology and Intellectual Property Law

Monthly Archives: June 2014

The Aereo Decision – Canadian Content?

Posted in Copyright, Intellectual Property

Careful observers of the United States Supreme Court’s 6-3 decision yesterday in American Broadcasting Cos., Inc. et al v. Aereo, Inc. may have detected a small Canadian flavour in the majority’s reasoning. As will be revealed, this was no coincidence, and McCarthy Tétrault played a small role by filing an amicus brief on behalf of a coalition of international rights holders and copyright scholars that drew the Court’s attention to the need to interpret the US Copyright Act in a technologically neutral way, as similar copyright laws have been construed by the Supreme Court of Canada and the European Court … Continue Reading

You can stay anonymous: SCC recognizes a privacy interest in protecting anonymity on the Internet

Posted in Privacy

On June 13, 2014, in a landmark privacy ruling, the Supreme Court of Canada (“SCC”) in R v Spencer[1] (“Spencer”) unanimously recognized that, in addition to confidentiality and control of the use of personal information, there may be a privacy interest in protecting anonymity in the context of internet usage. In this decision, the SCC decided that a person has a reasonable expectation of privacy associated with Internet activities and that the “lawful authority” exemption in PIPEDA does not create a basis to provide such information to the police unless the police actually demonstrate that … Continue Reading

Federal Court Dismisses Notion that Patents Should be Given Only One Interpretation for All Purposes

Posted in Intellectual Property, Patents

Summary

In a pair of simultaneously released decisions on June 13, 2014, Justice O’Reilly allowed Allergan’s applications (the “Applications”) prohibiting the Minister of Health from issuing NOCs to Cobalt (now “Actavis”) (2014 FC 566) and Apotex (2014 FC 567) to market their generic versions of LUMIGAN RC® until the expiry of Canadian Patent 2,585,691 (the “‘691 Patent”) in 2026.

Allergan was represented by Andrew Reddon, Steven Mason, Steven Tanner and Sanjaya Mendis of McCarthy Tétrault LLP.

Background

Allergan originally marketed a 0.03% bimatoprost (“Bp”) containing formulation for treating glaucoma called LUMIGAN, … Continue Reading

PM(NOC) Proceedings: Apotex defeats Bayer’s Canadian patent on oral contraceptive YAZ

Posted in Intellectual Property, Patents

On June 4, 2014 Justice Roger Hughes of the Federal Court released his public reasons for dismissing Bayer’s prohibition application against Apotex in respect of its generic YAZ tablets on the basis that Apotex’s non-infringement allegation was justified. His confidential judgment was issued on May 7, 2014 and Apotex received its NOC the very next day. The term of Bayer’s patent was not set to expire until August 31, 2020. For the full written decision see: Bayer Inc. et al. v. Apotex Inc. et al. 2014 FC 436.

Although not determinative, this decision addresses the somewhat contentious issue of … Continue Reading

Canadian Trademarks: Cathay Pacific wins battle over “Asia Miles” versus “Air Miles”

Posted in Intellectual Property, Trade-marks

On June 11, 2014 Justice O’Reilly of the Federal Court released his decision relating to the registerability of the trademark “Asia Miles” in light of opposition from Air Miles International.

The trade-marks opposition board had upheld Air Miles International’s opposition to the registration of “Asia Miles”.  Justice O’Reilly, on an application for judicial review, interfered with the Board’s findings and sent it back for reconsideration.

For the full written decision see: Cathay Pacific v. Air Miles International, 2014 FC 549.

This decision is important to the law of trademarks for the following reasons:

  1. Use of a mark includes
Continue Reading

Notice and notice regime under C-11 coming into force

Posted in Copyright, Privacy

The Government announced today that the notice and notice regime established under C-11 is coming into force. The delay in bringing these provisions into force was a consultations on possible regulations that the regime permitted. The Government announced that the provisions are coming into force without regulations.

The regime permits copyright owners to send notices to internet service providers and other internet intermediaries claiming infringement of copyright. The notices must be passed on by these service providers to their users. Because there are no regulations, the notices must be processed and passed on by the internet intermediaries without any fees … Continue Reading

What’s the difference between Google and an elephant? An elephant never forgets.

Posted in Privacy, Regulatory Compliance

Last month, in a bombshell decision, the European Union’s Court of Justice (“CJEU”) demanded that Google “forget” certain items. The demand resulted from a CJEU decision that individuals have a right to request that a search engine remove certain webpage links from the search results of a search including the individual’s name. The ruling is, for all intents and purposes, final.

In short, the CJEU decided that Google Inc. is subject to the EU Data Protection Directive 94/46 (“Direction”), even though its servers were located outside the EU. As a result, Google was a data processor and data controller within … Continue Reading

Big Data – Big Problem? The FTC Recommends the US Congress Reign in Data Brokers

Posted in Privacy

Big Data is the term used to describe the enormous datasets that are beyond the ability of most software to process. Statistical analysis of these giant data sets can allow the holder to predict baseball outcomes (think Moneyball), pregnancy  and, apparently, the stock market.

These enormous data sets however, are made up of data pertaining to individuals and the data brokers who amass these data sets have been less than forthcoming about the personal information they hold, raising privacy concerns.

This is the conclusion of a U.S. Federal Trade Commission (“FTC”) report last week which found “data brokers … Continue Reading

Compliance with CAN-SPAM Does Not Equal Compliance with CASL

Posted in Anti-Spam

We are approximately a month away from the effective date of Canada’s Anti-Spam Legislation (CASL), July 1, 2014.  CASL is widely considered to be among the toughest anti-spam legislation in the world and will have significant implications for businesses.  All commercial electronic messages sent (i) by any person within Canada, or (ii) by any person outside of Canada to a person within Canada are captured by CASL, meaning it applies to international senders who send commercial electronic messages to Canada.  Those who violate CASL could face significant fines and potential civil action.

We have received many questions related to the … Continue Reading

Privacy Breaches: Statutory Torts of the British Columbia’s Privacy Act Override Forum Selection Clauses

Posted in Privacy, Regulatory Compliance

On May 30, 2014, the Supreme Court of British Columbia rendered a judgment certifying a class action against Facebook Inc. (“Facebook”). In Douez v. Facebook Inc.[1], the plaintiff alleges that Facebook used the names or portraits of Facebook users without their consent in advertisements called Sponsored Stories in breach of section 3(2) of the British Columbia’s Privacy Act[2] which creates a statutory tort. This case, in a pre-certification stage, also dealt with the question of whether a court should decline its jurisdiction in presence of a forum selection clause or pursuant to the forum non Continue Reading