Canada has historically been a much less active jurisdiction for patent litigation compared to the United States, which can be explained in part by the simple fact that the US market is almost 10 times the size of the Canadian market. However, there are a few notable differences in the procedure and substantive law applied in both jurisdictions that have resulted in Canada becoming an increasingly attractive option for high-stakes patent litigation in recent years.
A series of recent cases, from big trials to precedent-setting appeals before the Supreme Court, have garnered international attention from IP owners. With these decisions, changes in law and improved court procedures for assisting litigants in getting to trial and obtaining interlocutory remedies more efficiently, Canada is proving to be an attractive jurisdiction for the protection and enforcement of IP rights.
The Federal Court of Appeal recently affirmed a Federal Court decision concerning a costs award from the liability phase of a patent infringement action between the Dow Chemical Company and NOVA Chemicals Corporation. The awarded lump-sum payment of C$6.5 million appears to be the largest reported award that the Federal Court has ever granted in an action for patent infringement.
Colour can be a potent marketing tool and indicator of source. From a legal perspective, the issue of colour trademarks has been considered recently by courts in the United States and United Kingdom. A recent Canadian Federal Court decision has reinforced the principle that, in Canada, a single colour applied to the surface of a consumer product is capable of being registered as a trademark.
The Federal Court has relied for the first time on a recent addition to the Copyright Act and ordered allegedly infringing goods to be seized prior to trial. This amendment to the act may now constitute a powerful weapon in copyright owners’ ongoing war against infringement of their works in Canadian court proceedings.
The Supreme Court of Canada recently released its judgment on a case that may have introduced a new test for copyright infringement in Canada. The majority decision also appears to herald an increased level of recognition for the property rights of purchasers of copyrighted material.