Canadian Copyright Class Action

A Quebec Superior Court judge has approved a class action in the case of Electronic-Rights Defence Committee ERDC c. Southam Inc. 2009 QCCS 1473 (search for ERDC in Superior Court judgements), a copyright case dealing with the inclusion of freelance articles in online databases, which could prove to be as important as the 2006 Supreme Court of Canada decision in Robertson v. Thomson Corp., 2006 SCC 43 [See: New Copyright Decision Released], the copyright battle pitting freelance writer Heather Robertson against the publishers of the Globe and Mail.

The impact on business? Just because you think you own the copyright in a particular work, don’t assume that right includes the right to reproduce the work in any and all media. We have been advising clients to include contractual language to clarify the rights of reproduction to include digital media.

Calgary – 18:20 MST

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SCC Upholds Internet Defamation Decision

Last Friday, the Supreme Court of Canada upheld the decision in Fromm v. Warman, to award $30,000 in damages for internet defamation. The judgment of the Court of Appeal for Ontario, 2008 ONCA 842, handed down in December, 2008 [Link to Court of Appeal Decision] was upheld. Warman brought an action against Fromm for defamatory postings on various internet websites. Fromm took the position that the comments were “fair comment” on matters of public interest. The court upheld the finding that the postings were defamatory.

Calgary – 09:30 MST

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Proposed Canadian Anti-Spam Law

On Friday, the federal government introduced long-overdue draft anti-spam legislation, the Electronic Commerce Protection Act. The law would allow civil lawsuits against spammers, and is designed to target email spam, as well as spam directed to cellphones and mobile devices. The proposed law would be enforced by the Privacy Commissioner, the Competition Bureau, and the CRTC, which raises questions about effective coordination of enforcement across multiple branches of government and quasi-government bodies. The law contemplates fines of up to $1 million for individuals and $10 million for corporate offenders.

Calgary – 20:45 MST

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Canadian Company Wins Round in Patent Battle

A year ago we posted a Patent Infringement Update on this case; earlier this month the USPTO rejected all 57 claims in a course-management software patent that US-based Blackboard Inc. used to successfully sue its Canadian competitor, Desire2Learn. The most recent rejection relates to claims added during the re-examination process [copies of the documents are posted here].  Blackboard originally obtained the software patent in 2006, but the patent was criticized for its broad claims covering technology that had been used by educational institutions and others for years at the time of filing. The battle is likely to continue, as Blackboard has since filed a new patent, and is suing its rival again for infringement of the new patent.

Calgary – 11:00 MST

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Google AdWords and Trade-marks

A US appeals court has permitted an attack against Google’s (in)famous AdWords program by allowing a trade-mark infringement lawsuit to proceed.  The lawsuit was brought against Google by Rescuecom Corp., a computer service and support company.  Rescuecom alleged that Google’s AdWords program (its practice of selling the Rescuecom trade-mark to other advertisers, thereby triggering the appearance of a competitor’s advertisements and links when a Google user launched a search of Rescuecom’s trade-marks) was a violation of trade-mark rights.

On April 3, the US Second Circuit Court of Appeals ruled that Rescuecom’s lawsuit could proceed.  The outcome of this suit will be closely watched.

Related Reading: Trademark Infringement and Google AdWords  

Calgary – 14:00 MST

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Olympic Lawsuits

VANOC, the organizer of the 2010 Olympics, has launched another lawsuit in the lead-up to the 2010 Winter Games, this time to block ticket scalping. The suit filed in March against Coast2Coast Tickets alleges trade-mark violations in the effort to curb unauthorized ticket resales. The claim alleges the ticket reseller is using protected Olympic marks to give the public the impression that there is some affiliation with VANOC.  Over the past few years VANOC has also pursued trade-mark remedies against:

  • a domainer who registered the domain names,, and ;
  • the owners of a business calling itself “Whistler Olympic Real Estate” and operating a website using the Internet domain name  ; and
  • a distributor, Teepee Handicrafts Ltd., who sold and distributed merchandise bearing marks such as VANCOUVER 2010 and 2010 VANCOUVER WHISTLER without the permission of VANOC  .

Olympic litigation is likely to increase over the next year, as ambush marketing and unauthorized sales heat up in advance of the games.

Related Reading: VANOC Ticket Broker Suit Raises Concerns about Reach of Official Marks

Calgary – 10:30 MST

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