May 2011

Trademark registration and a search for prior use

Marketing, Trademark Law /

Your brand is a way for your customers to identify and distinguish your goods and services from that of some else’s goods and services. Businesses therefore safeguard their brand with the registration of one or more trademarks.

When registering for a trademark, it’s important to do a search to find out if there’s another party that may also be using a confusingly similar mark somewhere else in Canada.

As the Supreme Court of Canada held last week in Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, in order for the owner of a registered trademark to have exclusive use of the trademark throughout Canada, there cannot be a likelihood of confusion with another trademark anywhere in the country.

In view of this recent ruling, it is recommended that a search be done before filing for a trademark registration in order to properly determine whether or not the registration is likely to succeed.

A Canadian’s right to access information held by the government

Privacy Law /

Under Canada’s Access to Information Act, in general any Canadian citizen or permanent resident may request and may be given access to any record under the control of a government institution.

The Act includes a list of all such “government institutions”, which includes for example the Department of National Defence, the Department of Health, the Department of Justice, and the Royal Canadian Mounted Police, but does not include ministerial offices for any of the listed Departments.

However, records located within ministerial offices for any of the listed Departments may nonetheless be subject to disclosure if the record relates to a departmental matter, and if a senior official of the government institution could reasonably expect to obtain a copy upon request (Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25).

Journalists, lawyers, and Canadians of all walks of life have relied on Access to Information requests to obtain enlightening information from a sometimes reluctant government.  If you need help with enforcing an Access to Information request, a lawyer may be able to help.

SCC will hear copyright in education case

Copyright Law /

Under the Copyright Act, anyone can make non-infringing use of copyrighted material provided the use is made for an allowed purpose and is fair.  This is known as fair dealing.  Allowed purposes under the Copyright Act include “research or private study” and “criticism or review”.

Late last year, the Federal Court of Appeal held in Alberta (Education) v. Access Copyright, 2010 FCA 198, that the tribunal “Access Copyright” made no error when it determined that the photocopying of excerpts from textbooks for use in classroom instruction for students in kindergarten to grade 12 was not fair dealing.  This is a major win for copyright holders as it clarified their scope of copyright in the context of education.

Today, the Supreme Court of Canada announced that it will hear an appeal of the Federal Court of Appeal’s decision in Alberta (Education) v. Access Copyright.  The outcome of this appeal, in addition to the landmark case of CCH v. LSUC, 2004 SCC 13, could clarify the law of copyright in Canada for years to come.

The New Consumer Product Safety Act

Business Law, Marketing /

Late last year, the Canada Consumer Product Safety Act was enacted into law, as part of the government’s effort to protect the public from dangers to human health or safety from both imported and domestic consumer products.  The Act is expected to come into force on June 20, 2011.

Companies that manufacture, import, advertise or sell goods such as baby walkers, kite strings that may conduct electricity, lawn darts, and bisphenol A baby bottles need to be aware that this Act specifically prohibits these goods for sale in Canada.

Other notable aspects of this Act include a duty to report health and safety incidents and the power for mandatory recall orders, which will be discussed in a later post.