2 min read
26 Mar
Intellectual Property


WHAT IS INTELLECTUAL PROPERTY WITH EXAMPLEIn general, it is an original work, design, mark, or invention that may be protected, usually for a set period of time, so that others who do not have or did not invest the mental energy, skill and time or were not first cannot claim it as theirs. 

An original book, statute, or song, a new useful machine, an effective medicine or pill, a unique design, the inner workings of a cell phone (integrated circuitry), and a distinguishable mark or sign (such as the Nike swoosh) are all examples of intellectual property. 

HOW IS INTELLECTUAL PROPERTY PROTECTED? It is usually protected by registration, but registration is not always necessary (e.g., copyright). The IP protection is often time limited (but not always). For example, a trade secret (recipe or formula), as long as it is kept secret, and a trademark with appropriate registration, renewals, and use has no time limit.


FAIR DEALING DEFENCE: In 2022, Cardi B, a rapper and singer, successfully defended against a tattoo copyright claim in the USA by using the defence of FAIR USE (significantly broader than Canada's "fair dealing" - a user's right).

Apparently, she had taken a full back tattoo that appeared in the picture of a male model, modified it somewhat, and placed part of it on the back of another model she used in a provocative picture in which she appeared on her first album cover.

In Canada, the doctrine of fair dealing allows for certain uses of copyright protected works. Certain aspects of personal use and uses seen as beneficial to society are part of fair dealing.

This is merely general information and not legal advice or opinion.

CROCS WINS IN CLOG-STYLE FOOTWEAR: Are crocs trademark protected or do they have other intellectual property protection? What is a knockoff? The Federal Court of Canada has found Double Diamond’s Fleece Dawgs footwear to be unlawful imitations, infringing Crocs’ registered 939 Industrial Design. The profits Double Diamond made on the knockoffs (that looked like made by Crocs) were ordered paid to Crocs: 2022 FC 1443 (CanLII) | Crocs Canada, Inc. v. Double Diamond Distribution Ltd | CanLII.

Can something produced by  artificial intelligence (AI) be copyrighted?  Is AI output copyrightable? As time goes by, we will have more definite answers to the question, but the answer now is a strong NO. If an original work contains some AI output, it may be copyrightable but that depends on a number of factors: the tool used (the chatbot used), what is used from AI, and how it is modified or integrated into the overall work or vision.

TRADEMARK AND OTHER BREACHES: Breaches of trademark and intellectual property rights can be pursued in the Federal Court of Canada or a provincial court or by way of ADR - arbitration or more commonly mediation. As it pertains to trademarks, allegations often center around causing confusion, misleading, passing off, and depreciation of goodwill (affecting good reputation).

 Nothing in this website is legal advice. 

Material is copyrighted.

Please visit us at our alternate website: https://www.fera-gasparini.ca/ and also to have a quick look inside our new book on Canadian Law and Business: https://bit.ly/3Ay0lSR.  

A full chapter on "Intellectual Property" appears in this book. 

Is Toblerone chocolate no longer Swiss made? Swiss laws pertaining to trademarks and indications of source set certain requirements before one can brag as “Swiss made”. With the parent company of Toblerone moving most of its chocolate making capacity to Slovakia, the wrapping on the Toblerone chocolate bar could no longer show the mountain that is part of the Swiss Alps.

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