Below is an excerpt from
John McKeown's March 2015 Mailer where he discusses
protecting product advertising.
Traditionally, parody in a literary context consists of a
composition in which the characteristic style of an author is
mimicked and made to appear ridiculous, especially by applying such
a style to inappropriate subjects. More recently there
have been a number of cases where parody web sites or sites for
critical commentary have been directed at a specific business.
Frequently a domain name is obtained which consists of the subject
of the site's trade mark combined with the word
"sucks" but other methods are used.
Previously a number of Canadian cases held that parody or
burlesque was not a defence to a claim for copyright infringement
but the rules have changed. After November 7, 2012 section 29 of
the Copyright Act provides that fair dealing for
the purpose of parody or satire does not infringe copyright. It is
possible in a specific situation that a parody or satire may be an
infringement of the author's moral rights even if it was within
A recent decision of the Court of Justice of the European Union
may provide some assistance in applying the exception to copyright
infringement for fair dealing for the purpose of parody. In that
case the court was asked to consider a parody exception which is
similar to the Canadian exception.
With regard to the usual meaning of the term 'parody' in
everyday language, it was not disputed, that the essential
characteristics of parody are: first, to evoke an existing work
while being noticeably different from it and second, to constitute
an expression of humour or mockery.
The court concluded that the Directive must be interpreted as
meaning that the essential characteristics of parody are: first, to
evoke an existing work, while being noticeably different from it,
and second, to constitute an expression of humour or mockery. The
concept of 'parody' within the meaning of the directive is
not subject to the conditions that the parody should display an
original character of its own, other than that of displaying
noticeable differences with respect to the original parodied work;
that it could reasonably be attributed to a person other than the
author of the original work itself; that it should relate to the
original work itself or mention the source of the parodied
These developments will likely make it more difficult for brand
owners to take effective legal action against parodies under the
Copyright Act. Consideration will have to be given to other
potential claims and non-legal responses.
The 30th ABA Annual Intellectual Property Law Conference
I have put a group of speakers together, in addition to myself,
for this meeting which will take place on March 25 in Bethesda,
Maryland. The program is entitled A Trademark Overhaul: Canadian
Trademark Amendments and Their Effect on U.S. Trademark Owners.
There will be a host of other speakers on other topics of interest
at the conference which takes place from March 25-27, 2015. Click here for more information relating to
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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