What is Intellectual Property?
Intangible property that is the product of mental activity that is regulated federally through CIPO
What is a Trademark (Certification Mark and Distinguishing Guise)?
A feature used to distinguish a brand (logo, brand name, etc.)
Certification Mark: Used to identify goods or services that conform to a standard (for e.g., 100% Canadian Beef).
Distinguishing Guise: Configuration of goods in containers or distinctive packaging.
Examples of Trademarks:
- Business Names
- Company Logos
- Words in Stylized Fonts
- Sounds (chimes)
- Advertising Slogans
Common Law related to Trademarks
Tort of Passing Off
Section 19 of Trade-Mark Act
- owner has exclusive right to use the mark throughout Canada.
- Provides complete defence to passing off claim (can be challenged)
- Can register in other countries under international conventions
- Valid for 10 years, can be renewed indefinitely.
- No need to use ® or ™ to protect a registered trademark, although it has become common practice.
What is copyright?
- The right to produce or reproduce the work, or a substantial part of it;
- The right to perform or deliver the work in public;
- The right to publish an unpublished work.
Duration of Copyright
life of the author + 50 years
Infringement of Copyright
Occurs when someone uses the work of the copyright holder without their consent. Need not copy entire works, “substantial part” is sufficient. Copied work need not be identical.
Defences to Infringement of Copyright
- Fair dealing: Use for research, private study, education, parody or satire, for criticism and review, or for news reporting.
- Copying musical works for private use
- Generating own content for non-commercial purposes
Remedies for infringement:
- Damages for profit or income lost by the owner
- Accounting for profits made (if any)
- Injunction to restrain further infringement
Trade Secrets - what are they protected by
Protected by contract (NDAs/confidentiality agreements or provisions) or obligations of fiduciaries.
Tort: Breach of confidence
(1) Confidential information is communicated to someone in confidence; and
(2) The information is subsequently misused by the person to whom it was communicated.
Source of Patents
Solely the Patent Act (no common law)
Characteristics of a patent
Protects inventions.
Gives the patent holder a monopoly over the invention for 20 years
The inventor must make the invention public by filing an adequate description so that others can duplicate it.
Patentable Inventions
Must be an “invention” – i.e., new and useful art, process (including business methods), machine, manufacture or composition of matter, or any new and useful improvement.
* Novelty (must be new)
* Inventiveness (level of ingenuity)
* Utility (must be useful)
Obtaining a Patent
File with the Patent Office at CIPO
Enforcing Patent Rights
- patent infringement
Defendant:
* Anticipation
* Obviousness
* Inutility
* Insufficiency
* Non-Patentable Subject Matter
