This is an application in the Court of Appeal for British
Columbia for leave to appeal in respect of a decision granting an
interlocutory injunction, prohibiting Wiston from using the name
"Woodpecker" in selling its products.
Woodpecker has sold its products since at least 2000, using the
name "Woodpecker" but did not register
the name as a trade-mark. Wiston registered a number of
trade-marks, some of which include the word "Woodpecker".
After sending a cease and desist letter, Woodpecker filed an
application for an interlocutory injunction, which was granted by
the Supreme Court of British Columbia.
The Court of Appeal refused leave to appeal on the basis that it
is not in the interests of justice to do so. The Court found that
there was no error in the Court's statement of the legal test,
and there was evidence to support the findings.
Copyright claims must be pleaded with particularity, otherwise
they are subject to being struck
The defendants have successfully struck the claim for copyright
infringement against them, but the plaintiffs were provided leave
to amend. The plaintiff sells and implements a method and software
designed for the management of processing centres and incoming
contact centres. It is alleged that the defendant copied
the method and software and then used their own version
to lure away important clients.
The Court held that the chain of title and the particulars of
the right or interest in the copyrighted work must be pled because
they are a part of the statutory right of action. Furthermore, the
Court noted that the plaintiff must specify what it is that is
covered by copyright and what it alleges has been done that gives
rise to the statutory remedies. The copyright claims were struck
with leave to amend to add these particulars to ensure technical
compliance with the Copyright Act.
There was also a related trade secret claim that the Court
declined to strike, noting that it would be ludicrous to compel a
plaintiff to set out a trade secret with precision in the pleading.
Further information may be provided at production and in discovery,
but at that point confidentiality orders may be in place to protect
Other Decisions of Note
Court Grants Judicial Review of Minister of Health's
Apotex brought this application for judicial review of a
decision of the Therapeutic Products Directorate (TPD) refusing to
review Apotex' Abbreviated New Drug Submission (ANDS) for its
Apo-Telmisartan product. The Court granted the application,
requiring the Minister to reconsider its decision not to accept the
ANDS for review.
The dispute centred over the medicinal ingredient in the
product. The Court held that there was no breach of procedural
fairness. However, the Court also held that the principles
of statutory interpretation do not support the Minister's
approach. In particular, the term "medicinal ingredients"
should have a consistent meaning in the Regulations. Thus,
the Court held that Apotex had been subjected to an inconsistent
approach that differs from its generic predecessors. Thus, the
Minister's decision regarding the interpretation of
"identical medicinal ingredient" was held to not be
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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