When a patent is infringed in Canada, a successful plaintiff can elect damages, or an accounting of the profits the defendant made by infringing. Unless there is an equitable reason to refuse an accounting of profits, the choice belongs to the plaintiff.
In Apotex Inc. v. Bayer Inc., 2018 FCA 32, the Federal Court of Appeal ruled in no uncertain terms that the infringer does not get to dictate the remedy. The infringer, Apotex, raised a novel argument that it could impose an accounting of profits on Bayer. In the Court below, Justice Fothergill rejected Apotex’s argument, holding … Continue Reading
If you’ve ever shopped for a used car, you likely know the two popular services, autotrader.ca and CarGurus. In a decision released earlier this week in Trader v CarGurus, 2017 ONSC 1841, Trader (the owner and operator of autotrader.ca) was awarded statutory damages of $305,604 against CarCurus for infringements of its copyrights in photographs of vehicles. The decision written by Justice Conway of the Ontario Superior Court contains some important interpretations of the Copyright Act including in relation to the scope of the new making available right, the copyright defenses for information location tools and fair dealing, and the calculation … Continue Reading
Five years ago, Canada enacted legal protection for technological protection measures (TPMs) as part of the Copyright Modernization Act. The Federal Court has now rendered the first decision interpreting these important rights. In short, the court made it clear that legal protection for TPMs were meant to foster innovation in the creative industries and that businesses blatantly engaging in industrial scale TPM circumvention activities will be dealt with harshly by the courts.
In Nintendo of America Inc. v. King & Go Cyber Shopping (2005) Ltd., 2017 FC 246 (docket here; decision available soon on the Federal Court website and … Continue Reading