The Ontario Superior Court has refused to issue an injunction
against the use of the registered trade-mark "mint
smoothie" for a chocolate confection made with a mint
chocolate centre. One of the defendants is the daughter of the
original owners of the corporate plaintiff, and she is alleged to
be passing off her chocolate confection to the detriment of the
plaintiff. The daughter's website suggests she is carrying on
the tradition of the family business and that the family recipes
are being used.
The Court referred to the RJR-MacDonald three-part test
for an interlocutory injunction but failed to find evidence of
irreparable harm and damage to the goodwill of the trade-mark that
could not be compensated by damages. The balance of convenience
also favoured the defendant as this single product accounted for
35% of their sales, and there was no evidence of a proportionate or
larger deprivation for the plaintiff.
Supreme Court denies leave on issue of whether a copyright
licence was exclusive
C-Map USA Inc. has been denied leave to appeal to the Supreme
Court on the issue, as summarized by the Supreme Court, as whether
express use of the word "sole" in a licence agreement was
indicative of an exclusive licence, rather than a sole licence.
Supreme Court allows leave on question of bargaining in good
faith for copyright fees
Canadian Artists' Representation/Front des artistes
canadiens, et al. v.National Gallery of Canada (SCC Docket 35353)
The Supreme Court has granted leave to the Canadian Artists'
Representation on the issue, as summarized by the Supreme Court, of
whether the National Gallery failed to bargain in good faith when
it reversed its bargaining position and refused to negotiate
minimum fees for right to use existing works. There is also a
question of whether the Copyright Act precludes artists'
associations from bargaining minimum fees in scale agreements,
pursuant to the Status of the Artist Act, for pre-existing
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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