How Do I Obtain a Copyright? INTRODUCTION TO INTELLECTUAL PROPERTY Intellectual property is a dynamic area of law that continues to be at the forefront of innovation, and continues to develop. Intellectual property is the legal right to ideas, inventions, and creations in the artistic, literary, industrial, and scientific fields. It also covers symbols, names, images, designs, and models used in business. Intellectual property is distinguishable from physical property in that physical property is tangible whereas intellectual property does not have a physical presence and therefore cannot be touched or grasped. The three most common types of intellectual property are: (1) copyrights; (2) trademarks; and (3) patents. This blog focuses on the law surrounding copyrights. COPYRIGHT What is copyright? In simple terms, a copyright gives one the right to copy. A person that holds a copyright has the sole right to produce or reproduce a work or a substantial part of the work in any form. Copyright includes the right to perform the work or any substantial part of it. If a person’s work is unpublished, copyright entitles that person to publish the work or any substantial part of it. What does copyright protect? Copyright protects a person’s original artistic, dramatic, musical, and literary creations, and therefore prevents the creation from being legally copied, performed, or broadcast without the creator’s permission. It also protects software that is original. Importantly, copyright protects the expression of an idea, rather than protecting the idea itself. It is therefore unsurprising that copyright affects artists, athletes, and entrepreneurs, all of whom might express ideas in vastly different ways, but are nevertheless equally deserving of protection. Copyright commonly protects the following kinds of creative works: literary works, such as books, pamphlets, and computer programs; dramatic works, such as films, plays, screenplays, and scripts; musical works, such as musical compositions; and artistic works, such as paintings, drawings, and photographs. Copyright also protects sound recordings, radio waves, and performers’ performances. Why is it important to register one’s copyright? Copyright exists automatically once a person creates an original work or other subject-matter, provided certain conditions in the Copyright Act are met. A person’s creation thus receives some copyright protection even without registering it at the Canadian Intellectual Property Office. However, when one registers its copyright and subsequently receives a certificate of registration, the certificate provides proof that the copyright exists and that the person registered is the owner of the copyright. Proof of copyright can help to prevent lengthy court disputes in the future. How long does copyright protection last? Copyright lasts for the life of the author, the remainder of the calendar year in which the author dies, and for 50 years following the end of that calendar year. This includes sound and video recordings, books, songs, poetry, and more. At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer to obtain a copyright or have general questions pertaining to intellectual property law, please contact our team by email or by calling 416-449-1400. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Intellectual PropertyJanuary 8, 2020May 29, 2024
How Do I Obtain Intellectual Property Rights? INTRODUCTION TO INTELLECTUAL PROPERTY Intellectual property is a dynamic area of law that continues to be at the forefront of innovation, and continues to develop. Intellectual property is the legal right to ideas, inventions, and creations in the artistic, literary, industrial, and scientific fields. It also covers symbols, names, images, designs, and models used in business. Intellectual property is distinguishable from physical property in that physical property is tangible whereas intellectual property does not have a physical presence and therefore cannot be touched or grasped. The three most common types of intellectual property are: (1) copyrights; (2) trademarks; and (3) patents. This blog focuses on the law surrounding trademarks. TRADEMARKS What is a trademark? A trademark can be one or many words, sounds, or designs used to distinguish the goods or services of one person or organization from those of others. As time passes, trademarks come to stand for not only the producer’s actual goods or services, but also the producer’s reputation. There are three types of trademarks: 1. An ordinary mark is made up of words, sounds, designs or a combination of these used to distinguish the goods or services of one person or organization from those of others. For example, suppose you start a technology company centred on fitness, and you call it SixPack Technologies, you could register these words as a trademark if you meet all the legal requirements for the services that you offer. 2. A certification mark can be licensed to many people or companies for the purpose of showing that certain goods or services meet a defined standard. For example, the Kellogg’s design, owned by the Kellogg Company, and licensed to Kellogg Canada Inc., is used on cereal and other goods. 3. A distinguishing guise is about the shape of goods or their containers, or a way of wrapping or packaging goods that shows they have been made by a specific individual or firm. For example, if you manufacture S-shaped granola bars, you could register the S-shape as a distinguishing guise. To register, or not to register? A registered trademark is a trademark that has been reviewed, accepted, and entered in the Register of Trademarks. The application process may or may not be difficult, depending on the trademark in question. Registration is direct evidence that you own the trademark. For those who have yet to register their trademark, all is not lost. In Canada, owners of unregistered trademarks still enjoy certain rights and protections, albeit to a lesser degree. The owner of an unregistered trademark simply has to publically use the trademark for a certain length of time. These rights, however, are limited to the geographic area where the trademark has been used. Also, a legal dispute involving ownership of an unregistered trademark would likely be long, complicated, and expensive. On the other hand, there are five reasons why you should register your trademark: 1. It proves that the trademark is yours. 2. It gives you exclusive rights to use the trademark across Canada for 15 years (which you can indefinitely). 3. It stops others from using a confusingly similar trademark. 4. It allows you to flag infringements by others. 5. It helps you license your trademark, which you can use to make money and increase your brand’s popularity. What trademarks are not registrable? Generally, a person cannot register the following marks: • names and surnames (i.e. John Doe) • clearly descriptive marks (i.e. “sweet” for chocolate) • deceptive marks (i.e. “sugar sweet” for candy sweetened with artificial sweetener) • words that represent a geographical location commonly known to be the place of origin of such goods or services (i.e. “Italy” for pizza) • words in other languages (i.e. “cioccolato”, which is Italian for “chocolate”) • words or designs that could be confused with a registered trademark or pending trademark • words or designs that look very similar to a prohibited mark (i.e. the Canadian flag) REGISTERED TRADEMARK + RECOGNIZABLE TRADEMARK = ENDLESS POSSIBILITIES A classic example of an incredibly powerful trademark is “Nike” and its very impressive “swoosh” trademark, since it doesn’t contain letters and is still recognized all over the world. Nike has registered the “swoosh” trademark and therefore has a strong legal right to prevent others from using a similar trademark in the same industries. Nike’s concern is that a similar trademark could confuse consumers into thinking that the infringing company is in fact Nike, which could both enrich the infringing company and compromise Nike’s strong reputation. When considering that it has taken Nike nearly 60 years to build a brand that some would consider synonymous with sports, it is no surprise that Nike will spend millions of dollars in legal battles to protect its reputation and brand image. At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer or have general questions pertaining to intellectual property law, please contact intellectual property lawyer, Frank Shostack at 416-446-5818 or frank.shostack@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Intellectual PropertyDecember 30, 2019September 30, 2020
Uber Data Breach Affecting 815,000 Canadians, Investigation Launched As much of the world has heard, Uber has had a data breach that affected people worldwide. Now, after several demands from a number of levels of Canadian governments, Uber finally disclosed that 815,000 Canadians were affected by this breach, resulting in the Canadian Privacy Commissioner opening a formal investigation into the breach. Uber has said that only names, emails and mobile phone numbers were taken by the hackers and that no credit card information, bank accounts or dates of birth were compromised. Unlike the U.S. and U.K., Canada has no laws in place requiring Uber to disclose data breaches and under the license agreement with the city of Toronto, the city council had to vote in order to demand information on the breach. The Privacy Commissioner “gave little detail in announcing the formal investigation, noting confidentiality provisions under the Personal Information Protection and Electronic Documents Act (PIPEDA)”. PIPEDA entitles individuals to certain protections for personal information that is collected in the course of commercial activity. “Personal information” is broadly defined by PIPEDA, and includes any information about an identifiable person (s 2). “Commercial activity” is also broadly defined and includes: any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists (s. 2). These sections form the basis of the protection of personal information under federal law. When a complaint is filed with the Commission, PIPEDA confers wide-ranging investigative powers to the Commissioner to investigate alleged breaches, make corrective orders to organizations, and assign penalties if a breach is found. Luckily, to address the lengthy process required to obtain information from businesses such as Uber, Federal privacy laws are being developed that would require businesses to disclose if a data breach occurs. Under the revision, the Privacy Commissioner would be limited to issuing a maximum fine of $100,000 for not disclosing a breach. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Intellectual PropertyJanuary 3, 2018June 17, 2020
Monkey Sues Human Over ‘Selfies’ Taken In 2011 By: Nicolas Di Nardo It’s 2017 and apparently, every year that goes by brings something new that we never thought we’d ever see possible. Now, animals seem to be able to sue humans over anything they please. Back in 2011, a British photographer by the name of David Slater gave a crested black macaque his camera, who ended up taking two ‘selfies’. This occurred after Slater spent many long periods of time with the monkey, teaching it to become interested in his equipment. Unfortunately at the time, Slater probably didn’t think he’d be on the receiving end of a lawsuit from the monkey. The monkey and photographs in question were taken in 2011 as part of his project to raise awareness about the species, which is endangered. His intentions were always good, Slater says, he has been a conservation photographer for a very long time. These photos went viral, and quickly ruined Slater’s life. He was no longer able to sell them to raise money for the conservation project, and couldn’t pay himself. The photos became to accessible to the public, so purchasing the photos from him were now out of the question. Wikipedia also created a page dedicated to the photographs, which made them even easier to find. Before all of this, he was making and raising money for the project, which he estimates he made roughly £2,000 in the first year, but after the photographs went on Wikipedia, he estimates that he lost at least £10,000, due to the lack of interest to purchase the photos from him. Now jumping to 2012, Slater was involved in the first legal dispute of many over the photos. In this dispute, Slater requested that Wikimedia Commons pay for his work or remove them, because they had uploaded them to the web as royalty free images. Wiki refused to do so, and claimed that Slater owned no copyright because the monkey was the one who pressed the shutter button, taking the photos himself. In 2014, Slater mentioned in an interview that he lost a huge amount of revenue as a result of this dispute. Wikipedia was Slater’s first hurdle, which he failed to overcome. Now, fast-forwarding to 2015, the People for the Ethical Treatment of Animals (PETA) decided to get a piece of the action. PETA is an animal rights organization which consists of 6.5 million members and supporters. Their motto is “Animals are not ours to eat, wear, experiment on, use for entertainment or abuse in any other way.” PETA challenged Slater by claiming that the proceeds from the photographs should go to the monkey, but shortly after in 2016, the court disagreed. The court ruled that copyright protection could not be applied to the animal. Coming to that type of verdict meant that there was still legally no copyright licence on the photos, and that they remain in the public domain. Feeling the pain of defeat, PETA fought back. This time, they took to the Copyright Act (U.S.). Last year they decided to fight the ruling in court, naming the monkey as the author of the works “in ever practical (and definitional) sense.” PETA appealed to the ninth circuit court of appeals, which heard the arguments last week. Using the Copyright Act, PETA stated in the appeal papers, that: “Had the monkey selfies been made by a human using Slater’s unattended camera, that human would undisputedly be declared the author and copyright owner of the photographs… Nothing in the Copyright Act limits its application to human authors… protection under the Copyright Act does not depend on the humanity of the author, but on the originality of the work itself.” The court must now decide: Whether PETA has a close enough relationship with Naruto to represent him What the value would be to provide a community of macaques with written notices of copyright Whether Naruto is actually losing out by not being the formal copyright holder One question has been brought up during the development of this case: Has PETA identified the correct monkey? Slater claims that the one in the photo is female and is not the same age as the one PETA is representing. The monkey PETA is representing is a six year old macaque. Slater believes strongly that it does matter that the right monkey is suing him, and PETA seems to not have the correct one, according to Slater. He’s been suffering after the constant battles in court. He couldn’t even attend the latest court date because he couldn’t afford a plane ticket to the U.S. In addition, he still owes his lawyers, has no real income, can’t afford new camera equipment, and as a result may quit photography all together. He would be happy being a dog walker or a tennis coach. It is shocking how a monkey has the capability in today’s world to ruin a career and put them on the verge of bankruptcy. Slater’s photos have always been for the right reasons, his intentions were good, he supports the raising of awareness for endangered species, but it seems an organization that should be on his side has overlooked Slater’s intention through the distribution and sale of these photographs, and might be taking this a little too far. At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer or have general questions, please feel free to contact one of our lawyers today, or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Intellectual PropertyJuly 21, 2017June 22, 2020
Lululemon sues Under Armour Over a $52 Sports Bra By: Nicolas Di Nardo Two of the biggest athletic apparel companies are about to go to war, this time, in court and over a sports bra. Lululemon Athletica (NASDAQ: LULU), a Vancouver-based athletic apparel company is suing rival, Under Armour (NYSE: UAA) for copying a sports bra design. The bra in question is Lulu’s Energy Bra, which retails for $52 USD, which Lulu claims UA has copied. The Under Armour products ranging from their Armour Strappy ($22-$29 USD) to their Armour Eclipse Low Impact which retails for $39 USD. The suit focuses on patent and trademark infringements, and Lulu claims “Under Armour’s unauthorized actions have caused an will continue to cause irreparable damage to Lululemon and its business.” Baltimore-based Under Armour responded in wake of the suit, only saying that they take “intellectual property rights of others very seriously.” These two companies are looking to take a piece of the growing market for sports bras, which currently accounts for more than $1 billion in U.S. sales a year. For Lululemon, securing their spot within any market is a key component of their business plan, seeing as they currently have over three dozen patents for their products, one of which happens to be for the sports bra in question. To secure the patent for this particular bra, they had to prove that the straps were an original design, and that it has ornamental value (as opposed to being strictly functional). Lawyers have said this occurrence is unusual in the fashion industry, especially since such companies would not usually go through the trouble and lengthy process of securing patents for their products. Intellectual property lawyer Laura Ganoza has said that, considering an article of clothing may only last a season or less, it is surprising that a company would go through a process that could take a year and a half just to get the patent. Another intellectual property lawyer from Minnesota chimed in, saying that if this case moves forward, he expects that it will focus predominantly on Lulu’s design. Lulu however, may not be too concerned with going to court with competitors. They took Calvin Klein to court back in 2012 in a dispute over a waistband design on its Astro Pant. The companies later settled out of court for an undisclosed sum. It seems that Lululemon is trying to intimidate its competitors, establish their dominance, stand their ground, and deter competitors from copying their designs. They are establishing themselves as a legitimate player in the bra industry by doing their research, and protecting their interests by obtaining rights through patents and trademarks, so that if a company were ever to copy a design, they open themselves up to legal problems. If this suit ends badly for Under Armour, it has the potential to skyrocket Lulu’s position in the sports bra market and bra industry, and also create more opportunity for start ups and online businesses to step in amid Under Armour’s potential downfall and loss of share in the market. There is also potential for Under Armour to have difficulty recovering and gaining back a percentage of the market, if while they suffer from this suit, the start ups, online businesses, Lululemon, and other major players take over completely. On the other hand, with Victoria Secret slowly declining, it could allow for Under Armour to leap back into the market. However, with it being an industry with $1 billion in sales in the U.S. alone, Under Armour should have no problem with their line of sports bras. As more develops and Under Armour responds, the fate of the Baltimore-based company will become clear. It is how they plan to recover that will seal their fate. Until then, we’ll have to wait and see. Devry Smith Frank LLP has a very experienced team of intellectual property lawyers that can assist companies and independent researchers with any of their intellectual property needs. For more information, please visit our intellectual property page and contact one of our lawyers today, or call us directly at 416-449-1400 for more information. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Intellectual PropertyJuly 19, 2017June 22, 2020
