In Nova Scotia v.
Roué, 2013 NSCA 94 (CanLII) the court
addressed the copyright in the design of the famous schooner
Bluenose. This is the ship that graces the back of the
Canadian dime. Certain descendants of the vessel's original
designer, William J. Roué, launched an action against the
Province of Nova Scotia, claiming that the Province was infringing
copyright and moral rights in the original design drawings of their
ancestor, by restoring or rebuilding the Bluenose
A little history is in order: The original Bluenose was launched
in 1921. A legendary racing schooner, the ship was undefeated for
17 years straight. The original Bluenose sank on a reef
off Haiti in 1946. A replica Bluenose II was constructed
in 1963, with access to Mr. Roué's original designs. The
Province took ownership in 1971 and now the Province describes its
current efforts as a restoration of Bluenose II. Mr.
Roué's descendants allege that the Province is in fact
creating an entirely new vessel and thus infringing copyright and
moral rights in the original drawings. The Province responded by
arguing, among other things, that the restoration of the
Bluenose II is not a "substantial reproduction"
of the original Bluenose, but rather an independent
design, and if any of the original design was used "it was
only dictated by the utilitarian function of the article", and
thus outside the purview of copyright.
As with many fascinating copyright battles, this one turned on
relatively mundane court rules. Here, the application and the
appeal centred on the question of whether the case could proceed as
an application rather than by means of a full trial. Weighing all
of the factors, the court suggested that the application could go
ahead, without the need to convert it to a full trial. Stay on this
tack... the case will continue.
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$314,000 in damages, $66,000 in costs at first instance, plus solicitor-client costs on the appeal (which was found to be "without merit"). In Lam v. Chanel S. de R.L., 2017 FCA 38, the Federal Court of Appeal confirmed these awards for four instances of selling counterfeit CHANEL goods at a Toronto-area mall between 2011 and 2013
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