The Federal Court granted summary judgment to the Aga Khan,
holding that Tajdin and Jiwa infringed his copyright in certain
literary works. A permanent injunction and other remedies were
granted. The Federal Court decision can be found here. Tajdin and Jiwa appealed to the Federal
Court of Appeal and the Federal Court of Appeal upheld the earlier
The only issue between the parties was whether the Aga Khan gave
his consent to the copying. The Court of Appeal reviewed the
relevant facts and then considered whether consent was either
expressed or implied. The Court of Appeal held that for consent to
be implied, the test is objective. The Court then concluded there
are no facts capable of constituting consent. Thus, one can only
infer that the publication was done without consent. Furthermore,
the Court held that there was an insufficient factual basis to
conclude the existence of a genuine issue regarding the defence of
laches as an acquiescence.
Amendments to Pleadings Allowed; Counsel's Eyes Only
Protective Order Refused
In this copyright infringement action, the Plaintiff conducted
discovery and learned of another factual situation relating to the
issues between the parties. The Court allowed the Plaintiff to
amend the pleadings to plead that particular factual
Production of documents was also ordered. However, the Court
refused to order that the documents at issue be disclosed only to
counsel and not to the Plaintiff himself, citing that the Defendant
had not established the unusual circumstances necessary for such an
Other Industry News
CIPO has issued a Practice Notice on "Registration of
assignments and correction of assignment-related
CIPO has issued a Proposed Practice Notice on "Correction
of errors introduced in the naming of an applicant at the time of
filing or national entry." The consultation period for this document is
January 20, 2012 to February 20, 2012.
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
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