Target Misses the Mark for Interlocutory Injunction: Target Brands Inc. v Fairweather Ltd.

In the newest development in the ongoing trademarks case between Target and Fairweather, Target sought to restrain Fairweather from operating stores in association with the “TARGET” trademark/trade name or a bullseye logo so as to cause confusion with Target’s own business until the trial date late 2012. But Target failed the interlocutory injunction test according to the Federal Court, and the motion was dismissed. Read the rest of this entry »

Domain Name as Personal Property: Tucows.Com Co. v Lojas Renner S.A.

In a landmark decision made last week in Tucows.Com Co. v. Lojas Renner S.A., the Ontario Court of Appeal found that internet domain names qualify as personal property. The dispute was over (Canadian company) Tucow’s right to keep the domain name <renner.com> in the face of (Brazilian company) Renner’s registered trademark “Renner”. The court held for Tucows, deciding that it could bring a claim in Ontario for declaratory relief against Renner on the grounds that a domain name registered to Tucows constituted intangible personal property. Read the rest of this entry »

Entire Apple Store Knockoffs in China

Fake Louis Vuitton handbags, fake Thomas the Tank Engine toy trains and fake electronics have, in essence, become the norm in China. But the recent incident takes piracy to a whole new level: fake Apple stores in Kunming, a city in the southern Yunnan province.  Read the rest of this entry »

Louis Vuitton and Burberry Knock-off Companies Fined $2.5million

In a decision rendered this week, the conclusion of Louis Vuitton Malletier S.A. v. Singga Enterprises (Canada) Inc. saw three Canadian companies fined approximately $2.5 million for selling knock-off Louis Vuitton and Burberry handbags. Vancouver-based Singga Enterprises Inc. and Carnation Fashion Company, and Toronto-based Altec Productions were accused of “manufacturing, importing, distributing, selling and offering for sale Counterfeit and/or Infringing Items”.  Read the rest of this entry »

Trademark Decision: Masterpiece Inc. v. Alavida Lifestyles Inc.

The SCC released a significant trademark decision last week, Masterpiece Inc. v. Alavida Lifestyles Inc., one which re-examines the legal concept of “confusion” in trademark law and the befuddled relationship between registered and existing, unregistered trademark rights.

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Microsoft challenges Apple’s attempt to trademark “App store”

In 2008, Apple applied for a trademark of the term “App store”, which Microsoft challenged as “too generic” and would prevent competitors from describing their own services accurately. Yesterday, Apple made a filing with the U.S. Patent and Trademark Office asking that the challenge be dismissed, stating that “the focus in evaluating genericness is on the Read the rest of this entry »

Koch Industries sues parody website over hacking, trademark abuse

In December, a website purporting to belong to Koch Industries, known for their skepticism of global warming, wrote a fake news release announcing “new environmental commitments. Koch Industries is now suing those responsible for the site, members of a group called Youth for Climate Truth, for damages, alleging hacking, trademark abuse and cybersquatting. The lawyer representing the group claims that, as parody is protected by the First Amendment, the purpose of the suit must be to Read the rest of this entry »

Marilyn Monroe IP Rights Purchased

Authentic Brands Group LLC (ABG), a leading intellectual property corporation led by Toronto-based Jamie Salter, recently announced their acquisition of the intellectual property rights of Marilyn Monroe. The purchase was made in conjunction with National Entertainment Collectibles Inc., a global media and entertainment company. A press release by ABG stated that “Marilyn Monroe’s legacy will not only live, but it will be greatly enhanced by ABG’s and NECA’s unparalleled track record in building brands… ABG is a leader in celebrity business ventures.” The Munroe estate was previously administered by Anna Strasberg, wife of the late Lee Strasberg, who will continue her involvement as a minority partner.
While there is some discomfort in the idea of companies being able to purchase merchandising rights of celerities who are no longer around to actually endorse anything, there is no denying the lucatriveness of the business. The Michael Jackson estate has made $275 million since his death two summers ago. Elvis Presley’s estate earned $60 million in 2010 alone, according to Forbes magazine.

The problem with “intellectual property”

I recently read an article by Richard Stallman where it was suggested that “if you want to think clearly about the issues raised by patents, or copyrights, or trademarks, the first step is to forget the idea of lumping them together, and treat them as separate topics”. The essence of the article is that lumping copyrights, patents, and trademarks together and calling it “intellectual property” can be distorting and confusing. Seeing as how I am in my first year of law school and pretty much everything seems distorting and confusing I decided that it might be helpful, at least for me, to briefly visit the basics of each area.

Patents

The World Intellectual Property Organization describes a patent as an exclusive right granted for an invention, which is a product or process that provides a new way of doing something, or offers a new technical solution to a problem. In Canada patent rights last up to 20 years.

Patents fulfill several useful functions. The first is creating an incentive to invent. The Canadian government’s guide to patents states that “without the possibility of patent protection, many people might not take the risk of investing the time or money to create or perfect new products”.

Another function of patents is to benefit the public at large by encouraging disclosure of innovations to the public. In Canada patent applications are made public 18 months after filing. Making innovations part of the public record allows them to be exploited by anyone, after expiration of the patent, and encourages perpetual improvement by other inventors. In Canada 90 percent of patents are for improvements to existing patented inventions.

Copyrights

A copyright is an exclusive right to copy a creative work or to allow someone else to do so. Copyright covers such things as literary, dramatic, musical and artistic works. Creators automatically acquire a copyright when an original work is created. In Canada copyright exists for the life of the author plus 50 years following their death. The main function of copyright is to reward and protect creative endeavour.

One main difference between patents and copyright is the area of public disclosure. As Richard Stallman notes “copyright law was designed to promote authorship and art, and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas, at the price of giving the one who publishes an idea a temporary monopoly over it”. Taking an existing, patented invention and adding or modifying a single component can be lawful and may well lead to a new patent. Writing a new and improved ending, or an extra chapter, for an existing novel is deemed to be copyright violation even if such an addition were widely viewed as a marked improvement to the existing work.

Trademarks

The Canadian government’s guide to trademarks defines a trademark as “a word, a symbol or a design (or a combination of these features) used to distinguish the wares or services of one person or organization from those of others in the marketplace”. Trademarks serve to identify a particular business/organization as the source of a good or service. Registering a trademark is not essential to its creation and a trademark that remains in use can exist indefinitely.

The function of trademarks is to ensure clarity among consumers regarding the source of a product or service. A word or symbol may be deemed a trademark in relation to a particular product but this does not necessarily mean that other companies are barred from using the word or symbol in a different way. This was illustrated in 2006 when the Supreme Court of Canada ruled that a small restaurant chain named “Barbie” was not violating the trademark of Mattel because this use was not likely to create consumer confusion with Mattel’s dolls.

Conclusion

So what do you think? Are the fundamental concepts behind, patents, copyrights and trademarks so different that it’s a grave mistake to refer to them all as “intellectual property”? Stallman also argues that the phrase is problematic in that it “carries a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects”. Is it time to retire “intellectual property”?

Naked Cowboy trademark dispute

It has been reported that the famous New York street musician Robert Burck, known as “The Naked Cowboy”, is suing rival busker Sandy Kane for trademark violation.   Burck claims that his look is trademarked and that Kane was “seeking to earn a living by appropriating his intellectual property for her own commercial benefit”.