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.
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
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
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.
A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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