Richard Stobbe

Richard Stobbe

Field Law

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A Binding "Clickwrap Agreement" From Paper?

Consumers and businesses routinely enter into binding contracts by means of both paper agreements and online “click-through” agreements. But what happens when you face a “hybrid” contract? Can a binding contract be formed...more

7/12/2016 - Canada Clickwrap Agreements Hybrid Contract Incorporated by Reference Terms and Conditions

Software Vendors: Do Your Employees Own Your Software?

When an employee claims to own his employer’s software, the analysis will turn to whether that employee was an “author” for the purposes of the Copyright Act, and what the employee “contributed” to the software. This, in...more

7/5/2016 - Canada Canadian Intellectual Property Office Software The Copyright Act Vendors

Oh Canada! … in Trademarks

In honour of Canada Day (for our American readers, that’s the equivalent of Independence Day, with the beer, hotdogs and fireworks, but without the summer blockbuster movie to go along with it), here is our venerable national...more

7/2/2016 - Canada Trademarks

“Wow Moments” and Industrial Design Infringement

An inventor had a “wow” moment when he came across a design improvement for cold-weather visors – something suitable for the snowmobile helmet market. The helmet maker brought the improved helmet to market and also pursued...more

6/28/2016 - Canada Industrial Design Patent Infringement Patents

BREXIT and IP Rights for Canadian Business

On June 23th, 2016, UK voters elected to approve a withdrawal from the EU. What does this mean for Canadian business owners who have intellectual property (IP) rights in the UK? The first message for Canadian IP...more

6/27/2016 - Canada Copyright EU European Union Intellectual Property Office (EUIPO) Popular UK UK Brexit

Trademark Series: Words in a Foreign Language

A word that clearly describes a particular product or service cannot function as a trademark for that product or service. The Trademarks Act phrases this idea in a more formal way: section 12(1)(b) says that a trade-mark is...more

6/21/2016 - Popular Registration Trademark Act Trademarks

Copyright and the Creative Commons License

There are dozens of online photo-sharing platforms. When using such photo-sharing venues, photographers should take care not to make the same mistake as Art Drauglis, who posted a photo to his online account through the...more

6/1/2016 - Copyright Creative Commons License Photographs

Android vs. Java: Copyright Update

By Richard Stobbe In a sprawling,  billion-dollar lawsuit that started in 2010, a jury yesterday returned a verdict in favour of Google, delivering a blow to Oracle.  (For those who have lost the thread of this story, see...more

5/27/2016 - APIs Canada Copyright Infringement Fair Use Google Oracle Oracle v Google

Liability of Cloud-Based Service Provider For Data Breach

Silverpop Systems provides digital marketing services through a cloud-based tool called ‘Engage’. Leading Market Technologies, Inc. (“LMT”) engaged Silverpop through a service agreement and during the course of that agreement...more

5/24/2016 - Breach of Contract Cloud Computing Consequential Damages Data Breach Negligence

Does Copyright Protect Facts?

By Richard Stobbe A documentary film is, by its nature, a work of non-fiction. It expresses a set of facts, arranged and portrayed in a particular way. If a fictional novel is written, based on a documentary film, is...more

5/18/2016 - Books Copyright Copyright Infringement Copyright Litigation Film Industry Popular Publishers Young Lawyers

IP Infringement Claim Against Canadian Company Stays in U.S.

Where should a lawsuit be heard? Canada? The US? In other posts we discuss the idea of a “choice of law” and “forum selection” clauses in contracts. In those cases, the parties agree to a particular forum in...more

5/12/2016 - Canada Choice-of-Law Design Patent Forum Non Conveniens Forum Selection Clause Motion to Dismiss Patent Infringement

Social Media Defamation: the #creeper decision

A dispute between suburban neighbours escalated and spilled over into social media when one of the neighbours vented on Facebook. The Facebook posts suggested that the plaintiff was a “nutter” and a “creep” who deployed a...more

5/3/2016 - Canada Defamation Facebook Online Platforms Popular Punitive Damages Social Media

Trademark Series: Confusion (Part 2)

By Richard Stobbe So much confusion, so little time. The Trade-marks Act teaches us that the use of one trade-mark causes confusion with another trade-mark if the use of both trade-marks in the same area would likely lead to...more

4/27/2016 - Canada Consumer Confusion Trade Marks Act Trademark Infringement Trademark Registration Trademarks U-Haul

Trademark Series: Confusion (Part 1)

A interesting Report on Business article by the founder of a Canadian business is useful as a cautionary tale about brand confusion (see: I was outraged when Sobey’s rebranded its chain with the same name as my company). The...more

4/21/2016 - Canada Corporate Branding Trademark Registration Trademarks

Clickwrap Agreement From a Paper Contract?

Can a binding contract be formed merely with a link to another set of terms? (For background on this topic, check out our earlier post What, exactly, is a browsewrap? which reviews browsewraps, clickwraps, clickthroughs,...more

4/20/2016 - Browsewrap Agreement Canada Clickwrap Agreements Terms and Conditions Terms of Service Terms of Use

Copyright Injunction Covers Vancouver Aquarium Video

The Vancouver Aquarium brought an injunction application to stop the online publication of a critical video entitled “Vancouver Aquarium Uncovered”, which used the Aquarium’s copyright-protected materials in a “derogatory...more

4/15/2016 - Canada Copyright Copyright Infringement Derogation Injunctions Public Interest Video Recordings

Trademark Series: Deviations!

The adage “use it or lose it” captures the essence of the ongoing requirement to put a trademark into commercial use. If you abandon your mark, you effectively give up your trademark rights. The corollary is to “use it as...more

4/14/2016 - Canada Commercial Use Trademark Registration Trademarks

Facebook Follows Google to the SCC

By Richard Stobbe A class action case against Facebook...is heading to the Supreme Court of Canada. ...more

4/7/2016 - Canada Facebook Forum Selection Google International Litigation Jurisdiction Supreme Court of Canada Terms and Conditions

Trademark Series: Can a Geographical Name be a Trademark?

Let’s take an example. Is the word PARIS registrable as a trademark in Canada? A quick search of the registry shows that there are over 250 registered marks which contain the word PARIS for everything from jewelry to software...more

3/30/2016 - Canada Trademark Infringement Trademark Litigation Trademark Registration Trademarks

Trademark Series: Famous Marks in Canada

Adidas, Veuve Clicquot, Barbie… When is a mark considered “famous” in Canada, and do famous marks enjoy special protection? A handful of Canadian cases have outlined the court’s treatment of well-known brands: Sure, Barbie is...more

3/23/2016 - Adidas Canada Corporate Branding Mattel Trademark Ownership Trademarks

Trademark Series: What is “use” of a trademark?

This is a story of what “use” really means. In the internet context, a trademark can be displayed on a website by a Canadian company, and that website can be accessed anywhere in the world. Similarly, a foreign company can...more

3/16/2016 - Canada International Trademark Protection Internet Trademark Act Trademarks Websites

Class Action Against Google’s Crowd Sourcing

Most of us have had to pass through a CAPTCHA screen in order to log in or use a web-based service. This often involves deciphering and typing in one or two garbled words. One of the more popular screens is operated by Google...more

3/9/2016 - Class Action Google Internet Websites

What Happens When a Franchise Agreement Ends - Part Three: Rescission

In our previous posts (See Part 1 and Part 2), we reviewed restrictive covenants and cancellation rights under franchise laws. In a recent decision of the Ontario Court of Appeal, the dispute focused on the right of...more

3/3/2016 - Canada Contract Terms Franchise Agreements Material Disclosures Remedies Rescission

CASL Enforcement (Part 2)

As reviewed in Part 1, since July 1, 2014, Canada’s Anti-Spam Law (or CASL) has been in effect, and the software-related provisions have been in force since January 15, 2015. In January, 2016, the Canadian Radio-television...more

3/2/2016 - Anti-Spam Legislation Canada CASL CRTC Malware Software Spam

CASL Enforcement (Part 1)

Since July 1, 2014, Canada’s Anti-Spam Law (or CASL) has been in effect, and the software-related rules have been in force since January 15, 2015. With the benefit of hindsight, we can see a few patterns emerge from the...more

2/26/2016 - Anti-Spam Legislation Canada CASL Commercial Electronic Messages Do Not Call List Enforcement Actions Internet Marketing Spam Unfair or Deceptive Trade Practices

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