Canada: Intellectual Property Weekly Abstracts Alert - Week Of October 3, 2011

Last Updated: October 6 2011

Edited by Chantal Saunders and Beverley Moore

ACTIONS

Motion to Hear Two Appeals One after the Other Granted

Dywidag Systems International, Canada, Ltd. v. Garford Pty Ltd.

The Court of Appeal was considering a motion seeking, inter alia, that one appeal be heard immediately after the hearing of a second appeal. The Court of Appeal held that the criteria taken into account to consolidate proceedings pursuant to Rule 105 of the Federal Courts Rules are not the same as those taken into account to hear proceedings together or one immediately after another. The Court of Appeal concluded that it was logical and efficient that the two appeals be heard by the same panel and one after the other in light of the possible impact that one decision may have on the other. Leave to amend the Notice of Appeal in one of the appeals was also granted.

NOC CASES

Supreme Court of Canada Denies Leave to Appeal

The Supreme Court of Canada refused leave in Teva Canada Limited v. Sanofi-Aventis Canada Inc. and Sanofi-Aventis Deutschland GmbH (Case No.34325). The decisions of the Prothonotary, the Court and the Court of Appeal related to portions of Teva's counterclaim relating to loss of permanent market share, loss of increased sales and lost market share. We summarized the Court's decision, and the Court of Appeal's decision.

OTHER CASES OF INTEREST

Court Upholds Finding of Use of Trade-Mark

Fasken Martineau Dumoulin S.E.N.C.R.L., S.R.L. v. Les Laboratoires Bio-Santé Inc.

The Registrar of Trade-marks (the "Registrar") upheld the registration of a trade-mark, registered in association with smoking cessation tablets. The Applicant appealed the decision of the Registrar. The Court noted that the decision was to be reviewed on a standard of reasonableness as no new evidence was filed before the Court. The Court found that the Registrar's decision was reasonable and noted that the Court does not re-weigh the evidence, but reviews to ensure the existence of justification, transparency and intelligibility in the decision making process. Further, the Court determines whether the decision falls within a range of acceptable outcomes in light of the facts and the law.

In reviewing the Registrar's decision, the Court addressed the invoices that were filed, stating that it is not necessary in all cases to have proof that the invoices accompanied the products at the time of transfer in order to meet the notice of association required by Section 4 of the Trade-marks Act. The Court dismissed the appeal.

Default Judgment Granted and Statutory Damages Awarded

Society of Composers, Authors and Music Publishers of Canada. V. IIC Enterprises Ltd. C.O.C. as Cheetah's Nightclub

The Court awarded default judgment against the Defendant, who failed to file a Statement of Defence. SOCAN elected to recover statutory damages in lieu of the applicable royalties, as permitted by the Copyright Act. The Court has discretion in the amount of statutory damages to award, in the amount of not less than three and not more than ten times the royalties owing. The Court awarded statutory damages in the amount of six times the licence fee owing, as a deterrent to the Defendant and others.

Court Stays Contractual Dispute in Alberta Pending Resolution of U.S. Patent Litigation

TR Technologies Inc. v. Verizon Communications Incorporated

In this motion, Verizon requested that the action be stayed in favour of litigation commenced in New Jersey relating to patent infringement. TR Labs commenced the within action relating to breach of a licence agreement in the Alberta Courts. TR Labs also filed an action in New Jersey against Verizon alleging infringement of certain U.S. patents. The Alberta Court considered arguments relating to forum conveniens. After reviewing the various factors, the Court found that Alberta maintains jurisdiction with respect to the contractual matter but the Alberta Court does not have jurisdiction over U.S. patent matters. As a result, the Court held that the Alberta proceedings would be stayed pending the outcome of the New Jersey action.

OTHER INDUSTRY NEWS

The Canadian Intellectual Property Office reported that Patent Prosecution Highway pilot projects between Canada and Denmark, Japan, and Korea are being extended until September 30, 2013.

Health Canada published a Notice of Increased Scope of Submissions being accepted in Electronic Common Technical Document (eCTD) electronic-only filing format.

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