Supreme Court of Canada: Intellectual Property Appeals

The following intellectual property cases are active before the Supreme Court of Canada. This list is automatically generated daily. Please contact me if you notice any errors or inconsistencies.

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[Listing generated on June 25, 2019]

Proceedings waiting for rulings

The following intellectual property appeals are awaiting judgment from the Supreme Court of Canada.

SCC File No. Status Style of Cause Appeal File No. Excerpt from Appeal Decision
37863 Hearing scheduled for 2019-03-29 Keatley Surveying LTD. v. Teranet Inc. 2017 ONCA 748: In 2007, the appellant, Keatley Surveying Ltd. (“Keatley”), brought a proposed class action on behalf of all land surveyors in Ontario who registered or deposited plans of survey in the provincial land registry offices. Keatley claimed that the respondent, Teranet Inc. (“Teranet”), who operated Ontario’s electronic land registry system (“ELRS”) for the Province, infringed surveyors’ copyright by digitizing, storing, and copying the plans of survey created by the surveyors and registered or deposited in the ELRS. … For the reasons that follow, I would dismiss Keatley’s appeal. I agree with the motion judge that copyright in the registered or deposited plans of survey belong to the Province. … In summary, I would hold that the extensive property-related rights bestowed on the Crown by the land registration scheme in Ontario compel the conclusion that the publishing of those plans, by making copies of the plans available to the public, is done under the “direction or control of Her Majesty.” Section 12 of the Copyright Act declares that the copyright in the registered or deposited plans of survey belongs to the Crown.

Application for leave

Applications for leave to appeal have been filed on the following intellectual property related proceedings.

SCC File No. Status Style of Cause Appeal File No. Excerpt from Appeal Decision
38550 Application for leave filed 2019-03-21 Sadhu Singh Hamdard Trust v. Navsun Holdings Ltd. A-65-18 2019 FCA 10: Sadhu Singh Hamdard Trust appeals from a decision of the Federal Court dated January 17, 2018 (2018 FC 42 per Southcott J.) dismissing its appeal of a decision by the Trade-marks Opposition Board (the Board) (2015 TMOB 214). In that decision, the Board allowed the respondent’s opposition of the appellant’s proposed word mark “AJIT” in association with printed publications and newspapers on the basis that it lacked distinctiveness.
38626 Application for leave filed 2019-05-16 Riches, McKenzie & Herbert LLP v. Cosmetic Warriors Limited A-70-18 2019 FCA 48: Cosmetic Warriors Limited appeals from a judgment of the Federal Court (Manson J., 2018 FC 63), allowing an appeal from a decision of the Registrar of Trade-marks (2017 TMOB 36). The hearing officer maintained the registration of a trade-mark in a proceeding challenging the registration for non-use under section 45 of the Trade-marks Act. He found that the trade-mark had been used in the “normal course of trade” within the meaning of subsection 4(1) of the Act, and that given that finding, there was no need to consider whether use was established in relation to exported goods under subsection 4(3). In issue is the trade-mark “LUSH,” as registered (No. TMA649810) for use in association with “[c]lothing, namely, t-shirts.” … T-shirts and tank tops bearing the LUSH trade-mark are sold by Lush Canada in limited quantities to LUSH store employees in both Canada and the United States to wear as part of their uniform, and sometimes to give as gifts to family and friends. Cosmetic Warriors asks that the Federal Court’s judgment be set aside and that the LUSH trade-mark be maintained on the register in accordance with the hearing officer’s decision. It argues that the Federal Court judge applied the wrong tests for trade-mark use within the meaning of subsections 4(1) and (3), and that he was insufficiently deferential to the hearing officer’s findings. For the reasons set out below, I would allow the appeal.

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Canadian Intellectual Property