In Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA
161, the Federal Court of Appeal ("FCA")
recently overturned a substantial damages award in a pharmaceutical
patented medicines action on the basis that the trial judge
admitted improper hearsay evidence. This is an important reminder
that the hearsay rule of evidence is alive and well.
At trial, only one witness was called to testify in support of
damages and he did not have actual firsthand knowledge of the
purported facts to which he was testifying. Instead the witness
could only testify to the oral and written statements of others.
The FCA ruled that this evidence was hearsay, and therefore
Hearsay evidence is an oral or written statement made by a party
who has not come to court to testify. An example of oral hearsay is
a witness testifying that "John told me he would give me
$100". This is hearsay because the author or speaker of these
statements is not present in court to testify to the truth of the
statement. Whether or not the statement is admissible depends on
the use of that statement. If the purpose of calling the hearsay
evidence is to prove the truth of the statement, then the statement
is inadmissible. Therefore, in this example, the proper way to
prove that John would give the witness $100 is to call John as a
witness to testify to the truth of that statement; otherwise, the
statement cannot be used to prove that John would have given the
witness any money.
Despite the recent trend of some courts and tribunals to relax
the rules of evidence regarding the admissibility of hearsay
evidence to allow for more flexibility, here, the Federal Court
took a more strict and traditional analysis.
As a result, parties to intellectual property disputes must be
aware of the potential inadmissibility of hearsay when collecting
evidence. This is particularly germane in trade-mark disputes where
evidence of confusion generally comes from second hand sources. The
proper collection and documentation of this evidence can make or
break a successful infringement or opposition proceeding.
Trade-mark holders should be proactive when presented with
evidence of confusion. It may not be enough for a representative of
the company to swear an affidavit that the company received phone
calls from those who say they confused the company's trade-mark
with another. The better evidence is directly from each of those
callers who can testify first hand to their confusion. Where
feasible, trade-mark holders should have a process in place to
document the names and contact information of witnesses and the
details of any evidence of confusion. This way, individuals able to
give first hand evidence can be contacted if the matter proceeds to
litigation or an opposition proceeding. If such evidence is not
properly preserved, a trade-mark holder may be left with no
admissible evidence to prove its claim.
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.
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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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