Site mentioned on

The blog, mentioned the website today with regard to the Docket Browser feature. As identified by Ted Tjaden, the docket browser includes the docket entries, as well as related court decisions, appeals and the patented medicine where it can be identified. Ted Tjaden maintains a list of Canadian courts that maintain online accessible court dockets that would be helpful to anyone monitoring and investigating proceedings in other jurisdictions. Thanks for the mention!

SCC denies leave in “acrimonious” trademark discovery

This morning, the Supreme Court of Canada denied leave in Osmose-Penotox Inc. v. Société Laurentide Inc. (SCC #34175), where an appeal was sought from the Federal Court of Appeal’s decision in 2011 FCA 31. The issues in the appeal appear to have been related to the scope of discovery in a bifurcated proceeding. The Federal Court of Appeal had written:

[10] With respect, I think the appellant fails to understand that the respondent’s missing letter to Rona, even if its content was assumed to be most favorable from the perspective of the appellant, is not relevant at the first stage of the proceedings. The determination of the validity of the registration of the appellant’s trade-mark entails a legal determination over which the beliefs of the respondent, whatever the self-serving or even incriminating terms in which they have been expressed in the response letter, carry no influence. The same holds true for the determination of the respondent’s liability should the trade-mark be found to be valid and to have been infringed.

[14] Before concluding, I think it is fair to say that the debate between the parties, which so far has been going on for at least eight years, has been acrimonious. … The parties should understand that the time has now come to move this case to trial without further interruption.

More information about these and other intellectual property proceedings at the Supreme Court are available on my Supreme Court litigation page.

Ontario Superior Court supports neutral citations and electronic decision databases

In a practice direction, the Ontario Superior Court announced that as of October 1st, parties should include neutral citations (2011 ONSC 123) on Superior Court decisions, in addition to other citations. They also announced that they will accept copies of decisions from electronic databases all though they caution that decisions are sometimes corrected after issuance and the date the decision was obtained electronically should be noted in the citation. The practice notices identifies QuickLaw and CanLII as “Approved electronic databases” dedicated to the publication of judicial decisions.

The Federal Court and Federal Court of Appeal had previously announced their support for the use of neutral citations for all decisions.

Voltage “Hurt Locker” affidavit

As mentioned last week, the Federal Court issued an order allowing Voltage Pictures to obtain information from ISPs about subscribers who had allegedly downloaded the “Hurt Locker” movie (Voltage Pictures LLC c. Mr. or Ms. DOE, 2011 CF 1024Translation). A copy of the supporting affidavit (PDF) providing the plaintiff’s facts linking the downloading of the movie to IP addresses is now available online (thanks @AnthonyHemond).

In BMG Canada v. Doe, 2005 FCA 193, one of the leading cases in this area of the law, the recording companies brought a motion for documents in the possession of the ISPs under Federal Courts Rules, Rule 233. The court ultimately denied the motion in that case and concluded that the supporting evidence connecting the pseudonyms of the P2P users with IP addresses was inadequate. At the time, the Federal Court of Appeal wrote:

[21] Much of the crucial evidence submitted by the appellants was hearsay and no grounds are provided for accepting that hearsay evidence. In particular, the evidence purporting to connect the pseudonyms with the IP addresses was hearsay thus creating the risk that innocent persons might have their privacy invaded and also be named as defendants where it is not warranted. Without this evidence there is no basis upon which the motion can be granted and for this reason alone the appeal should be dismissed.

From the Federal Court’s ruling in the Voltage proceeding, this does not appear to have been an issue.

Canadian Intellectual Property