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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
McCartney & Lennon, Jobs & Wozniak, Watson & Crick. We are all looking for synergistic collaborations. In life sciences, some of those collaborations may be with your employees, independent contractors or corporate research partners.
A recent decision of the Federal Court of Canada has highlighted the difficulties in asserting trademark and copyright rights related to the appearance of functional products with unique design elements.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).