This was a motion to remove Smart & Biggar/Fetherstonhaugh
LLP as solicitors of record for the Defendants. One of the
Plaintiffs alleged that he provided confidential information during
the course of preliminary discussions with counsel at Smart &
Bigger. Smart & Biggar defended the motion on the basis that
only information necessary to run a conflict search was solicited
from one of the Plaintiffs, Dr. Sikes, and if anything, only
general information relating to patent litigation in Canada would
have been provided. The Court noted the test requires the
determination of (1) whether a lawyer received confidential
information attributable to a solicitor-client relationship; and
(2) if so, is there a risk that the relevant confidential
information will be used to the prejudice of the former client.
The Court determined that the Plaintiffs had not met their
burden of demonstrating that a "reasonably informed member of
the public in possession of all the relevant facts would conclude
that there was a solicitor and client relationship between Dr.
Sikes and Smart & Biggar or that confidential information
relevant to the matter at hand was provided to Mr. Garland."
Costs were awarded to the Defendants forthwith in any event of the
Decision to Expunge Based on No Use for Services Upheld on
This was an appeal of a decision of a Hearing Officer of the
Trademarks Opposition Board in response to a section 45 notice.
This notice requires the Applicant to demonstrate use within the
last three year. The Hearing Officer found the evidence did not
demonstrate use and expunged the trademark.
The Applicant submitted evidence to the Hearing Officer that
Supershuttle provides ground transportation to airline passengers
to and from airports in the United States and France. Vans do not
operate in Canada but Canadians can book services online. The
Hearing Officer determined that this did not constitute use in
Canada. The Court found that the decision was reasonable and the
appeal was dismissed.
FCA Upholds Decision Striking Trademark from the Register
In the Federal Court, TLG brought a proceeding to expunge
Product Source's trademark registration for NIC OUT (FC decision here, summary here). The Federal Court granted that
application, holding that the Product Source mark was not
registrable on the date it was registered. The FCA dismissed the
appeal, holding that the Federal Court did not err in law or on an
extricable legal principle.
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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