Trade-marks

Motion for interlocutory injunction denied in Ontario Superior Court

Rheo Thompson Candies Limited v. Thompson, 2013 ONSC 4932

The Ontario Superior Court has refused to issue an injunction against the use of the registered trade-mark “mint smoothie” for a chocolate confection made with a mint chocolate centre. One of the defendants is the daughter of the original owners of the corporate plaintiff, and she is alleged to be passing off her chocolate confection to the detriment of the plaintiff. The daughter’s website suggests she is carrying on the tradition of the family business and that the family recipes are being used.

The Court referred to the RJR-MacDonald three-part test for an interlocutory injunction but failed to find evidence of irreparable harm and damage to the goodwill of the trade-mark that could not be compensated by damages. The balance of convenience also favoured the defendant as this single product accounted for 35% of their sales, and there was no evidence of a proportionate or larger deprivation for the plaintiff.

Copyright

Supreme Court denies leave on issue of whether a copyright licence was exclusive

C-Map USA Inc., et al. v. Nautical Data International, Inc., et al. (SCC Docket 35345)

C-Map USA Inc. has been denied leave to appeal to the Supreme Court on the issue, as summarized by the Supreme Court, as whether express use of the word “sole” in a licence agreement was indicative of an exclusive licence, rather than a sole licence.

Supreme Court allows leave on question of bargaining in good faith for copyright fees

Canadian Artists' Representation/Front des artistes canadiens, et al. v. National Gallery of Canada (SCC Docket 35353)

The Supreme Court has granted leave to the Canadian Artists' Representation on the issue, as summarized by the Supreme Court, of whether the National Gallery failed to bargain in good faith when it reversed its bargaining position and refused to negotiate minimum fees for right to use existing works. There is also a question of whether the Copyright Act precludes artists’ associations from bargaining minimum fees in scale agreements, pursuant to the Status of the Artist Act, for pre-existing works.