Intellectual Property Chapter 18

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Questions and Answers

What does the registration of an industrial design grant the owner?

The right to make copies of any article.

The ability to change the design freely without restrictions.

The exclusive right to make, import, or sell the registered design. (correct)

The obligation to mark the design for it to be protected.

For how long is the industrial design term valid?

Indefinitely, as long as the design is in use.

5 years from the registration date.

The later of 10 years from the registration date or 15 years from the filing date. (correct)

10 years from the filing date.

Which of the following is true regarding the marking of a registered design?

All industrial designs must be marked with a © symbol.

It is mandatory to mark the design for it to be protected.

Marking the design enhances rights in an infringement case. (correct)

A court cannot award damages if the design is marked.

What defines a trademark?

A sign or combination of signs that distinguishes a person's products or services. Signup and view all the answers

Which of the following is NOT considered a traditional trademark?

A new color scheme applied to packaging. Signup and view all the answers

What was the outcome of the Harvard College v Canada case regarding the patentability of higher life forms?

Only the process of genetic modification is patentable. Signup and view all the answers

What key feature of Roundup Ready canola is highlighted in the content?

It contains genes and cells patented by Monsanto. Signup and view all the answers

What was the main action taken by Monsanto against Percy Schmeiser?

Monsanto sued him for patent infringement. Signup and view all the answers

How did Percy Schmeiser come to have Roundup Ready canola on his property?

It blew onto his property from a neighbor's land. Signup and view all the answers

What was one of the concerns raised by the Supreme Court of Canada’s decision regarding genetic modification?

It lacked clarity on patent protection. Signup and view all the answers

Which aspect of biotechnology law is highlighted through the case of Monsanto v Schmeiser?

Enforcement of existing patents. Signup and view all the answers

What was the final ruling of the Supreme Court of Canada in the case discussed?

Schmeiser infringed Monsanto's patents. Signup and view all the answers

What implication did the Supreme Court's ruling have for the biotechnology industry in Canada?

It caused disappointment and uncertainty in the industry. Signup and view all the answers

What is an example of a design used as a trademark?

The golden arches of McDonald's Signup and view all the answers

Which of the following is NOT a characteristic of a trade name?

It must always be the same as the trademark. Signup and view all the answers

What is the nature of common law trademarks?

They come into existence through usage, not registration. Signup and view all the answers

Why might the adoption of a trademark prevent the use of a similar trade name?

Due to potential confusion in the marketplace Signup and view all the answers

Which of the following is an example of a scent being used as a trademark?

The scent of vanilla for a candle brand Signup and view all the answers

A company may prevent others from using its trademark through which form of protection?

Through common law protections Signup and view all the answers

What type of trademark might you find associated with a product's packaging style?

A design trademark Signup and view all the answers

Which of these options refers to a trademark that is not officially registered?

A common law trademark Signup and view all the answers

What organization primarily manages most domain names?

Internet Corporation for Assigned Names and Numbers Signup and view all the answers

Which of the following is NOT a condition for registering a .ca domain name?

Operating a business in the United States Signup and view all the answers

What term describes the practice of registering domain names for illegitimate purposes?

Cyber-squatting Signup and view all the answers

Which of the following is an example of a legitimate interest in a trademark?

Companies with a similar trademark seeking the same domain name Signup and view all the answers

What must a complainant prove to be successful in a domain name dispute resolution?

The domain name is confusingly similar to their trademark Signup and view all the answers

What typically happens if a complainant is successful in a dispute against a registrar?

The registrar can transfer the domain to the trademark owner Signup and view all the answers

Who is responsible for maintaining Canada's internet domain names?

Canadian Internet Registration Authority Signup and view all the answers

What might be a reason why a business would seek to register a .com domain?

To promote their global online presence Signup and view all the answers

What is one way strategic business information is protected?

Protection is afforded through express or implied confidentiality obligations. Signup and view all the answers

What was the primary concern of LAC Minerals during their negotiations with Corona?

To propose a joint venture for the Williams property. Signup and view all the answers

What distinguishes a trade secret from other types of intellectual property?

Trade secrets are protected as long as they remain confidential. Signup and view all the answers

What legal consequence did LAC Minerals face after negotiations with Corona collapsed?

They could legally develop the Williams property without further consent. Signup and view all the answers

What was lacking in the meetings between LAC and Corona regarding the information shared?

A non-disclosure agreement. Signup and view all the answers

In what situation might implied confidentiality obligations arise?

During casual discussions without any formal agreement. Signup and view all the answers

What is likely a reason Corona chose to share information with LAC?

To attract potential investors. Signup and view all the answers

What type of information did LAC Minerals discuss with Corona during their meetings?

The geology of Corona’s site and the nearby Williams property. Signup and view all the answers

What could happen to a patent if it is not properly marked?

The patent may be revoked. Signup and view all the answers

What is required for the defence of innocent infringement to apply?

Proper notice must be used on items. Signup and view all the answers

Which scenario could lead to the loss of a trademark?

The trademark becomes generic and losing its distinctiveness. Signup and view all the answers

What is a potential consequence of disclosing confidential business information?

The information can no longer be protected. Signup and view all the answers

What must a business implement to maintain security of confidential information?

Restrict access and employ physical security measures. Signup and view all the answers

What may happen if a trademark is not continuously used in association with goods or services?

The trademark may be considered for cancellation. Signup and view all the answers

What should a business include to protect confidential information effectively?

Confidentiality agreements with third parties. Signup and view all the answers

What is the likely result if a company does not produce enough of its patented product to meet local demand?

The company’s patent will be automatically revoked. Signup and view all the answers

Study Notes

Industrial Design Registration

Grants the owner the exclusive right to make, use, and sell the design for a specific period
Valid for 10 years from the date the design was filed
The owner can apply to renew the design for an additional 10 years, up to a maximum of 25 years.
Marking a registered design: The owner can mark the design with the ® symbol, indicating it's registered and providing notice that they have exclusive rights.

Trademarks

A trademark is a sign used to identify products or services of a particular business and distinguish them from those of other businesses.
Traditional trademarks: These include words (brand names), logos, slogans, and visual designs.
A common law trademark arises from the use of the mark in trade, but it does not offer the protection of a registered trademark.

Harvard College v Canada Case

The case dealt with the patentability of higher life forms.
The court ruled against the patentability of these life forms, suggesting they lack the characteristics required for a patent.

Roundup Ready Canola

The key feature highlighted is its resistance to Roundup herbicide. This allows farmers to spray the herbicide without harming the canola crop, facilitating weed control and potentially improving yields.

Monsanto v Schmeiser Case

Monsanto sued Percy Schmeiser for allegedly using their patented Roundup Ready canola without authorization.
Schmeiser claimed the canola seeds had blown onto his land from a neighboring farm.
The Supreme Court of Canada ruled in favor of Monsanto, stating that Schmeiser had infringed on the patent.

Concerns about Genetic Modification

The Supreme Court's decision raised concerns about the potential implications of genetic modification on farmers' rights and the broader agricultural sector. Specifically, it questioned whether farmers should have the right to save and replant seeds they have purchased, even if those seeds contain genetically modified traits.

Biotechnology Law in the Monsanto v Schmeiser Case

The case highlights the intersection of patent law, agriculture, and intellectual property rights within the field of biotechnology. It raises questions about the balance between protecting intellectual property and promoting innovation, and the rights of farmers to save and replant seeds.

Supreme Court Ruling and Implications

The Supreme Court ruled in favor of Monsanto, affirming the validity of their patent and finding Schmeiser guilty of infringement.
This decision had significant implications for the biotechnology industry in Canada, solidifying the legal protection of patents for genetically modified organisms and potentially discouraging further innovation.

Examples of Trademarks

A logo (like the Apple logo) can serve as a trademark.
Packaging style can also function as a trademark if it is distinctive enough to identify the product.

Trade Names

Trade names refer to a business's name.
Characteristics of a trade name include:
- It's used to identify the business.
- It's not necessarily a word, but it can be.
- It is not registered or protected by law in the same way as trademarks.

Common Law Trademarks

Common law trademarks are established through use and provide some legal protection for the trademark, but they are not as comprehensive as registered trademarks.

Trademark Adoption and Trade Names

The adoption of a trademark might prevent the use of a similar trade name because it could create confusion in the marketplace and lead consumers to believe they are purchasing goods or services from the trademark owner.
A company can protect its trademark through registration which provides strong legal protection.

Scent Trademarks

Scent trademarks are rare, but they exist. An example is the distinctive scent associated with Chanel No. 5 perfume, which is protected as a trademark.

Protection Against Trademark Use

A company can register its trademark, which provides legal protection that allows them to prevent others from using the same or similar marks associated with their products or services.

Trademark Types

A company can protect its trademark by registering it.
Packaging style can be a trademark if it is distinctive enough.

Unregistered Trademarks

An unmarked trademark is a trademark that is not officially registered with the government.

Domain Names

ICANN (Internet Corporation for Assigned Names and Numbers) is the primary organization managing most domain names.
Registering a .ca domain name requires at least one of the following:
- The applicant must be a Canadian citizen or resident.
- The applicant is a corporate entity incorporated in Canada.
- The applicant is registered with the Canadian Intellectual Property Office.

Domain Name Registration Practices

Cybersquatting or typosquatting is the practice of registering domain names for illegitimate purposes, often to profit from trademarks or confuse users.
Using a trademark as a domain name is considered a legitimate interest in a domain name.

Domain Name Dispute Resolution

A complainant must prove the following to be successful in a domain name dispute resolution:
- The domain name is identical or confusingly similar to their trademark.
- The registrar has no legitimate interest in the domain name.
- The registrar is using the domain name in bad faith.
If a claimant is successful, the registrar could have to transfer ownership of the domain name to the claimant.

Internet Domain Names in Canada

CIRA (Canadian Internet Registration Authority) is responsible for maintaining Canada's internet domain names.

Business Domain Name Considerations

A business might seek to register a .com domain name for the following reasons:
- To establish a strong online presence.
- To avoid typosquatting and cybersquatting.
- To protect their brand and make it more recognizable.

Protecting Strategic Business Information

Non-disclosure agreements (NDAs) are one way businesses protect strategic business information during negotiations.

LAC Minerals v Corona Case

The primary concern of LAC Minerals during their negotiations with Corona was protecting their mining technology from being misused.

Identifying Trade Secrets

Trade secrets are not protected under intellectual property laws like patents or trademarks.
They are distinguished from other types of intellectual property because they are not publicly disclosed. The information must be secret and have commercial value to the owner.

Consequences of Trade Secret Misuse

LAC Minerals faced legal consequences after negotiations with Corona collapsed, as the information was allegedly misused to Corona's benefit.

Trade Secret Confidentiality

The key issue in the LAC Minerals case was the lack of a clear agreement between the parties about the confidentiality of the information discussed. This meant that implied confidentiality obligations were not established, leaving the information vulnerable to misuse.

Corona likely chose to share information with LAC Minerals with the expectation that the information would be kept confidential and not misused.

LAC Minerals Information

LAC Minerals discussed mining technology and geological information with Corona during their meetings, which was considered valuable trade secret information.

Patent Marking

**A patent may be invalidated if it is not properly marked with the patent number and the word "Patent" ** (or other equivalent wording in Canada).

Innocent Infringement

The defence of innocent infringement requires that the party infringing on a patent or design was not aware of the existence of the patent or design, and could not reasonably have known about it. This is a difficult defense to establish.

Trademark Loss

A trademark can be lost if it is no longer actively used in association with goods and services.
Disclosing confidential business information could result in the information losing its protection as a trade secret, potentially damaging the business.

Protecting Confidential Information

Companies must establish internal policies and procedures to maintain the security of confidential information. This might include:
- Restricting access to the information.
- Implementing secure storage measures.
- Monitoring access and use of the information.

Trademark Non-Use Consequences

If a company does not continuously use a trademark in association with goods or services, it could become vulnerable to cancellation or loss of the trademark.

Protecting Confidential Information Effectively

A business should include non-disclosure agreements (NDAs) to protect confidential information shared with others.

Patent Product Production

If a company does not produce enough of its patented product to meet local demand, it could be found to be abandoning the patent, potentially leading to its loss.

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Description

Explore the fundamentals of intellectual property in Chapter 18. This chapter covers the nature of intellectual property rights, how to acquire them, and methods to protect these vital organizational assets. Gain insights into practical applications through a case study of ELEX Technologies.