The underlying dispute involved a trade-secret misappropriation
and passing-off claim by a manufacturer against a rival company.
Google appealed the lower court decision. In Equustek Solutions
Inc. v. Google Inc., 2014 BCCA 295 (CanLII), the BC Court of Appeal
has rendered a decision.
Google applied for a stay of the original injunction on a number
of grounds, including the argument that the original order was
"unprecedented in Canadian law", the order was
"overly broad", and that the order will have a
"direct and irreversible impact" on Google. Google argued
that it would suffer "irreparable harm" for two reasons:
first, Google customers would be impacted, although it was not
clear how exactly; and second, Google argued that this Canadian
court order would open the floodgates to other similar orders
against Google in other jurisdictions.
The appeal court acknowledged the importance of the case, musing
that "the order of the court below raises profound issues as
to the competence of Canadian courts to issue global injunctions
that affect what content users around the world can access on the
However, after balancing the arguments, the Court of Appeal did
not grant the stay, so the injunction remains in place.
There are a few interesting points about this decision:
Although Google was
not a party to the original lawsuit (remember, it
was an IP dispute between two rival manufacturers) and no-one
claimed anything against Google itself, Google took the
extraordinary step of undertaking to pay damages to Equustek, for
damage it might suffer if the injunction was lifted. Google said it
would track traffic to the offending websites (which it is supposed
to de-index) and disclose that information to Equustek. If Equustek
lost profits as result of traffic to these sites, then Google would
make good the damages.
Equustek counter-argued that this was
cold comfort, asking: "What value is it to have the right to
sue Google for damages?" If access to the offending websites
was not blocked by Google, said Equustek, then Equustek would still
face the burden of proving damages, and then suing Google for those
damages, and in the meantime its intellectual property would
continue to be devalued.
The appeal will go ahead, and while the appeal is underway, the
order against Google will remain. This is one to watch.
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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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