When a user dies, who owns the contents of that user's
In Ajemian v. Yahoo
Inc. (May 7, 2013), a Massachusetts court
considered this question. Two brothers, who administered their
brother John's estate, brought a lawsuit against Yahoo for
access to email messages of their deceased brother, and a
declaration that the email account was property of John's
estate. The court considered the Yahoo Terms of Service, which
included this clause: "You agree that your Yahoo! account
is non-transferable and any rights to your Yahoo! ID or contents
within your account terminate upon your death. Upon receipt of a
copy of a death certificate, your account may be terminated and all
contents therein permanently deleted."
The court looked at the central question of whether these terms
- in particular, this "No Right of Survivorship and
Non-Transferability" clause described above - was
reasonably communicated to the user. The terms were amended
before the time of death but the evidence was unclear on
whether the deceased user had assented to this particular
amendment. Because of the weak evidence on this point, the court
decided that Yahoo could not rely on the forum selection clause
which would have deflected the case to California.
The court took the view that the deceased user was a
Massachusetts resident and courts in that state had a strong
interest in the outcome of the case as it related to the assets of
a deceased resident, as opposed to the nature of Yahoo's
services. The ultimate decision was remanded to the lower court,
but we can take away a few important lessons:
amendments to those terms should be carefully reviewed by any
Canadian company conducting business online. This includes
everything from an email service like Yahoo, to cloud-computing
service providers, online retailers, ebook sellers and software
Corporate accounts may not impacted by the death of a user, but
anyone making consumer sales should review their online terms to
address survivorship issues. And there are many cases where even a
"corporate" user is signing up as an individual, without
any clarity on what happens to that account as an "asset"
of the business after death.
The Canadian Intellectual Property Office has issued a report entitled IP Canada Report 2016, discussing trends in IP use domestically, and by Canadians abroad, based on analysis of CIPO's internal data and those collected by the World Intellectual Property Organization.
The value of reliance on a trade-mark registration, as opposed to prior use, stands out sharply in the recent Federal Court of Appeal case of Pizzaiolo Restaurants Inc. v. Les Restaurants La Pizzaiolle Inc. ( 2016 FCA 256 October 28, 2016).
This is an appeal from the Federal Court's decision setting aside the Registrar of Trade-marks decision to the extent that it dismissed the applicant's opposition regarding the mark PIZZAIOLO and Design.
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