Safe Gaming Systems commenced a patent infringement action in
the Federal Court in respect of a patent that, according to the
statement of claim, relates to methods in a computer system for
monitoring, regulating and terminating the gambling activities of
an individual. Two of the defendants brought a motion to strike out
the action on the ground that the Federal Court lacks personal
jurisdiction over them as agents of the Crown in right of the
province of Nova Scotia, and the Nova Scotia's Proceedings
Against the Crown Act requires that the action be brought in
the Supreme Court of Nova Scotia. Moroccanoil brought a motion for summary judgment relating to
the infringement of its registered trade-marks (the
"Trade-marks") in respect of hair care products against
one of the Defendants, Edward Sivitilli. Settlement was reached
with the other Defendants. Sivitilli filed a Statement of Defence,
denying the allegations. This is a motion for an interlocutory injunction by Molson, to
set aside and enjoin the notice of termination by Miller of a
Licence Agreement relating to the distribution and sale of
Miller-brand beers by Molson in Canada. The underlying action was
commenced by Molson, seeking declarations, inter alia,
that the attempted termination by Miller of the Licence Agreement
is a breach of contract and breach of good faith. The Ontario
Superior Court of Justice noted that Molson has been the exclusive
Canadian licensed distributor of Miller's trademarks and brands
since 1982. Health Canada has started a Consultation on the Plain Language Labelling
Initiative. The consultation will be open for comment until
September 6, 2013. 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.
and
Beverley Moore
IN THIS ISSUE
Patents
Issue of Personal Jurisdiction over Crown Defendants
Still in Play
Safe Gaming Systems Inc. v. Atlantic Lottery
Corporation, 2013 FC 217
The Court noted that the Federal Court requires a statutory grant
of power to exercise jurisdiction, and that the question of whether
the Federal Court has jurisdiction over particular subject matter
(e.g., patent infringement actions) is distinct from the question
of whether it has jurisdiction over a particular party. With
respect to the latter, the Court held that section 20 of the
Federal Courts Act, section 2.1 of the Patent Act
and section 54(2) of the Patent Act, read together,
provide a grant of jurisdiction over patent remedies sought against
the provincial Crown.
The decision was appealed. On May 14, 2013, the appeal was
dismissed on the basis that the issue of personal jurisdiction over
the Crown defendants is still in play, and may be dealt with at
trial, or earlier as a motion for summary judgment or summary
trial.Trade-marks
Summary Judgment Granted in Light of Affidavit
Evidence
Moroccanoil Israel Ltd. v. Lipton et al.,
2013 FC 667
The Court found that Moroccanoil established the claims through
affidavit evidence, including that the product sold in association
with the Trade-marks was counterfeit, and that harm and damage was
caused by the offer for sale of the counterfeit product. In
particular, the Court noted that the Defendant was required to put
its "best foot forward" and not rely on unsupported
statements to argue that there is a genuine issue for trial.
Damages were assessed and awarded.Other Cases
Interlocutory Injunction Granted to Prevent Termination
of Licence Agreement
Molson Canada 2005 v. Miller Brewing
Company, 2013 ONSC 2758
The Court set out that Molson must meet a three-part test
requiring that there is a serious question to be tried, that
irreparable harm would be suffered if the injunction was not
granted, and that the balance of convenience favours Molson.
The threshold to establish a serious issue is a low one, and the
Court found that it was met by Molson. The Court found that Molson
had established irreparable harm. The Court noted that the Supreme
Court of Canada specifically included "permanent market loss
or irrevocable damage to a business reputation" as an example
of irreparable harm in RJR-MacDonald, and this type of
damages was demonstrated by Molson. The Court concluded that the
balance of convenience favours the preservation of the status quo
and therefore in favour of granting the injunction. As a result
Miller was prohibited from terminating the Licence Agreement
pending the trial of the action.Other Industry News
Health Canada has started a Public Consultation on the Safety of Paid Plasma
Donations. The consultation will be open for comment until July
26, 2013.
ARTICLE
11 July 2013
Issue Of Personal Jurisdiction Over Crown Defendants Still In Play (Intellectual Property Weekly Abstracts Bulletin: Week 0f July 1, 2013)
Borden Ladner Gervais LLP
Contributor
BLG is a leading, national, full-service Canadian law firm focusing on business law, commercial litigation, and intellectual property solutions for our clients. BLG is one of the country’s largest law firms with more than 750 lawyers, intellectual property agents and other professionals in five cities across Canada.
Safe Gaming Systems commenced a patent infringement action in the Federal Court in respect of a patent that, according to the statement of claim, relates to methods in a computer system for monitoring, regulating and terminating the gambling activities of an individual.