First of all, I am sorry for not posting to this blog more frequently.
I do have an excuse though.
For the past several months, I have been working very hard writing my new book, The Ultimate Insider’s Guide to Intellectual Property – When to See an IP Lawyer and Ask Educated Questions about Copyright, Trademarks, Patents, Trade Secrets, Industrial Designs, Contracts, and Other Ways of Protecting Your Ideas and Covering Your Assets®.
The publisher is now going through the final motions to get it out to Amazon, which may take another week or so.
I set up a separate website where you can have a look at the table of contents and read what others say about the book.
Check it out at http://ipbook.ca.
Who would have thought that the week before Christmas would be so fruitful on important decisions in the area of intellectual property.
First, the Supreme Court of Canada has delivered a landmark decision in Cinar Corporation v. Robinson. In it, the Supreme Court of Canada unanimously dealt with many crucial issues pertaining to how copyright cases will be resolved in the future:
– the scope of protection afforded by the Copyright Act;
– the meaning of the words “substantial part” that set out the threshold for copyright infringement;
– rules regarding disgorgement of profits;
– rules regarding non-pecuniary damages; and
– rules regarding punitive damages.
Despite Supreme Court’s unanimity, this decision in fact further blurs the line between unprotectable ideas and protectable expression of ideas by adding a significant degree of subjectivity in the analysis. The Court refused the approach whereby the court first determines the original elements in the plaintiff’s work, then filters out unprotectable elements from that list, and, finally, compares the remaining protectable original features with what was actually used by the defendant. Instead, the Supreme Court preferred the holistic approach where “The character of the works will be looked at, and the court will in all cases look, not at isolated passages, but at the two works as a whole to see whether the use by the defendant has unduly interfered with the plaintiff’s right.”
This case likely turned on the single issue that defendants had access to the plaintiff’s work and knew that plaintiff would object to their use of it. The court wanted to land a helping hand to an author who failed to carry out a project whereas a very similar project was later carried out by several parties some of whom were originally involved in the plaintiff’s project.
It is what some lawyers call “the degree of sneakiness” that decided the case. In other words, the entire copyright law analysis only happened after the judges internally decided that the plaintiff should be rewarded and the defendants should be punished.
While I typically always support those whose rights are infringed in copyright law suits, this may be the case when bad facts make bad law, because I’m not sure that I agree (from the description of the two works, and without having had a chance to compare the actual works) that what was used was more than unprotectable idea.
Time will tell what this case will mean in terms of development of Canadian copyright law.
The second case is the case decided by BC Court of Appeal that affirmed the landmark decision of BC Supreme Court in Woodpecker Hardwood Floors (2000) Inc. v. Wiston International Trade Co..
I already wrote about the facts of the case with a brief analysis before, but briefly here they are again: a BC flooring company that’s been around for over a decade realized that its competitor, another flooring company from the same city trademarked the word “Woodpecker” as its own.
The dilemma – do we spend a ton of money on rebranding or do we spend a ton of money on lawyers to fight this through – was entirely avoidable. All the first company had to do was register its trademark first.
They decided to fight for their trademark. BC Supreme Court granted an injunction recognizing the first company’s prior right in the trademark. Now, the BC Court of Appeal has agreed.
Happy ending? Not really, unless you mean a happy ending for all lawyers involved in this case.
Now that the case has been through the BC Supreme Court level and the Court of Appeal level, the first company has probably spent close to 100 times the amount that it would have cost them to register their trademark when they were starting out.
If anything, it would have been a good insurance policy.
Remember, registering trademarks is within the reach of any business that’s more than just a hobby. It’s a long-term investment that is crucial for any business that spends time, money and energy on branding and marketing.
Now, that there is a way to register your trademarks with a Triple Peace-of-Mind Guarantee™, you are committing a crime against your business if you are not protecting its trademarkable assets!
Speaking of how we help our clients register trademarks, here’s a testimonial from another happy customer:
P.S. Merry Christmas, Happy New Year and Happy Holidays!
As I was watching the latest Dragons’ Den on my laptop a couple of days ago, I was bombarded with the same advertisement, over and over again.
Ford was adamant to show me how great their new car is.
The ad closed with this line:
Only Ford has Ecoboost fuel economy
Curiously, the ad does not explain what the Ecoboost fuel economy actually is or how it is better (if at all) from all other options that exist on the market today.
What matters is that only Ford has it.
How do they achieve this unique position on the marketplace?
They have a registered trademark for the word ECOBOOST®
Now, nobody can use the word ECOBOOST in association with automobiles and automobile engines.
What the system does is irrelevant, because trademarks do not protect the substance, only the name.
But this is a great example how protecting a name can boost your advertisement, marketing and (hopefully) sales.
P.S. If you look at our Trademark Factory™ website, you will notice that we do what may look like the same thing there when we claim that we offer our unique Triple Peace-of-Mind Guarantee™
Our offer is indeed unique, but even if (when) other law firms decide to copy our offer, they still would not be able to call it a “Triple Peace-of-Mind Guarantee”, because it is our trademark.
Are you using a special name to refer to the uniqueness of your offer? See if you can register it as a trademark for FREE with no strings attached.
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Tags:Small BusinessNew Copyright ActFair DealingCollectivismPhilosophy