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Intellectual Property

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Wednesday, March 15, 2017 @ 9:02 AM

PATENTS - Procedure - Costs - Assessment or fixing of costs

Appeal by Nova Chemicals Corporation (Nova) from a costs award in favour of the Dow Chemical companies (Dow). Dow successfully sued Nova for patent infringement and successfully defended the judgment on appeal. The Federal Court awarded Dow lump-sum costs of $2.9 million for legal fees, plus disbursements of $3.6 million. The Court found that allowable legal fees under Column V of Tariff B would have awarded 11 per cent of Dow's incurred costs, resulting in an inadequate award. The Court characterized the 33 days of discovery and 32 days of trial as an extremely complex patent case involving extensive expert testimony, thereby justifying an increased costs award. The Court awarded lump-sum costs to avoid additional delay and expense associated with an assessment of costs. The Court concluded that an award of approximately three times what was available under the Tariff was reasonable. The Court found that Dow's bill of costs and the attached schedules permitted determination of the reasonableness of the award and related disbursements. Nova appealed. ... [read more]

Wednesday, March 15, 2017 @ 9:01 AM

TRADE-MARKS - Infringement - Confusion and deception - Remedies - Damages - Procedure - Costs - Assessment or fixing of costs - On appeal

Appeal by the defendant, Lam, from an award of damages and costs in favour of the plaintiffs, the Chanel companies. The plaintiffs alleged the defendants sold counterfeit Chanel products. In 2015, the Federal Court found the defendants liable for infringement of the plaintiffs' trade-marks and selling goods in a manner likely to cause confusion. The plaintiffs were awarded compensatory damages of $64,000, punitive and exemplary damages of $250,000, and costs totaling $66,000. The defendants were liable for the award on a joint and several basis. In 2016, the Federal Court of Appeal remitted the matter to the trial judge for clarification of whether the defendant was responsible for three or four instances of dealing in counterfeit goods. Upon redetermination, the trial judge clarified that the defendant was liable for four instances of counterfeiting and reaffirmed the initial decision's damages and costs awards. The defendant appealed the damages and costs awards. The plaintiffs appealed the costs award on the basis it failed to sufficiently reflect their settlement offer made prior to the redetermination hearing. ... [read more]

Friday, March 10, 2017 @ 12:45 PM

Fasken Martineau partners with OneEleven

International business law and litigation firm Fasken Martineau announced a multi-year sponsorship with OneEleven, a Toronto-based technology accelerator and innovation hub dedicated to supporting Canada’s most promising scaleups.  ... [read more]

Friday, March 10, 2017 @ 8:51 AM

Drawing the fine line between zealous advocacy and incivility

Like American politics, the legal profession has suffered a decline in civility. ... [read more]

Thursday, March 09, 2017 @ 7:00 PM

Cutting through the complexity of IP valuation 

There are many challenges that arise in the valuation of intellectual property due to a number of factors, including: difficulties in estimation of potential market and market share (particularly for early-stage or disruptive IP); quantifying and accounting for synergies; selection of an appropriate discount rate (and the quantification of risk); tax considerations; and use of market data. This article discusses a number of these issues as highlighted by recent examples of litigation involving complex IP valuation issues, including: Recent cases involving Apple and Samsung illustrate that damages for infringement in the technology space can be significant. The pharmaceutical industry has many examples of damages arising from infringement which are dealt with under s. 8 of the patent medicines notice of compliance (NOC) regulations. Recent cases (including Sanofi against Canada’s Apotex) highlight the significant damages that can arise in the case of generic drug competition; ... [read more]

Thursday, March 09, 2017 @ 7:00 PM

High cost of a lost fight

The recent case of Mediatube Corp. v. Bell Canada 2017 FC 6 started with a bang — a claim for more than $350 million in damages for patent infringement — and ended “a damp squib,” in the words of the trial judge. ... [read more]

Thursday, March 09, 2017 @ 11:10 AM

IP expert Halwani joins Lenczner Slaght

Lenczner Slaght announced that Sana Halwani has joined the firm as a partner. ... [read more]

Tuesday, March 07, 2017 @ 12:02 AM

Rethink the billable hour to give middle class access to justice | Julius Melnitzer

The best thing the legal profession’s regulators could do to ensure access to justice for the middle class is to ban hourly billing — or at least mandate some sense into its use. ... [read more]

Thursday, February 23, 2017 @ 7:00 PM

Intellectual Property Law - Trade-marks - Passing off and unfair competition - Confusion as to wares and services - Business trade name - Procedure - Appeals

Appeal by the plaintiff, Vancouver Community College, from dismissal of its passing off and official mark infringement action against the defendant, Vancouver Career College. The plaintiff was a public post-secondary education and the defendant was a private vocational institution. Their educational programs overlapped. The plaintiff’s claim sought damages with declaratory and injunctive relief arising from alleged actions by the defendant to direct online search traffic to its website. In 2009, the defendant adopted VCCollege as a new trade-mark and launched a new website at VCCollege.ca. The plaintiff contended that the phrases “VCC” and “Vancouver Community College” were long associated with it as a public post-secondary institution. The plaintiff alleged the defendant’s online presence and bidding on search engine keywords that included its name was a form of internet poaching that constituted passing off and trade-mark infringement. The trial judge dismissed the action. The plaintiff appealed. ... [read more]

Thursday, February 23, 2017 @ 11:33 AM

Former Supreme Court Justice Cromwell joins BLG

Thomas Cromwell, who retired last fall after a distinguished time with the Supreme Court of Canada, has joined Borden Ladner Gervais LLP as counsel. ... [read more]