E-TIPS

Over the past few years, regulatory amendments have permitted linking of outside “technical” documents to various regulations administered by Health Canada, especially the Food and Drug Regulations (the Regulations). Although this allows timely updates to technical standards, it also takes important regulatory matters outside of the Canada Gazette process (which permits public comment) and by outsourcing requirements to international bodies, defeats in-Canada democratic oversight of bureaucratic actors. This is part of a process of “outsourcing” Canadian law to external bodies which has been ongoing for some time.

On April 30, 2024, the Ontario Superior Court of Justice (the Court) released its decision in LifeLabs LP v Information and Privacy Commr. (Ontario), 2024 ONSC 2194, dismissing LifeLabs LP’s (LifeLabs) application for judicial review and finding that the Information and Privacy Commissioners of Ontario and British Columbia (ON IPC and BC IPC, respectively) did not err in their application of the law on solicitor-client and litigation privilege, nor breach LifeLabs’ right to procedural fairness.

On April 11, 2024, the Federal Court of Appeal (the Court) released its decision in Steelhead LNG (ASLNG) Ltd. v Arc Resources Ltd., 2024 FCA 67, finding that exploiting the goal, purpose or advantage of a patented invention for commercial benefit does not constitute an infringing “use” under section 42 of the Patent Act.

On May 7, 2024, the Federal Court of Canada (the FC) issued an updated practice notice on “The Use of Artificial Intelligence in Court Proceedings” (the Notice), which amends its prior notice of the same name that was published on December 20, 2023 (as previously reported by the E-TIPS® Newsletter here).

On February 28, 2024, in Open AI, Inc., v Open Artificial Intelligence, Inc., and Guy Ravine No. 4:23-cv-3918-YGR , the US District Court for the Northern District of California (the Court) granted OpenAI Inc’s (OpenAI) motion for a preliminary injunction against Guy Ravine and his company Open Artificial Intelligence Inc. (collectively, Open Artificial Intelligence) prohibiting its use of the mark “Open AI. ”

On April 16, 2024, the Government of Canada released its budget titled “Budget 2024: Fairness for Every Generation” (Budget 2024), which includes substantial financial investment in artificial intelligence (AI) with the goal of boosting innovation, raising productivity and accelerating economic growth to secure Canada’s AI advantage.

On April 9, 2024, in Promotion In Motion Inc. v Hershey Chocolate & Confectionery LLC, 2024 FC 556, the Federal Court of Canada (FC) upheld a decision of the Trademarks Opposition Board (TMOB) finding that there was a likelihood of confusion between the applicant’s SWISSKISS trademarks and Hershey’s KISSES and/or KISS trademarks for chocolate.

On April 16, 2024, the Federal Court of Appeal (the Court) issued its decision in Eli Lilly Canada Inc v Apotex Inc, 2024 FCA 72, upholding a decision of the Federal Court (FC) that found Canadian Patent No. 2,226,784 (the Patent) from Eli Lilly Canada Inc. et al. (the appellants) to be invalid for overbreadth and insufficiency.

On March 27, 2024, the Superior Court of Québec (the Court) issued its decision in Fonds GB c 9451-3082 Québec Inc., 2024 QCCS 1122, granting Fonds GB’s application for an interlocutory injunction enjoining 9451-3082 Québec Inc. (9451 Québec) from using the trade name and trademark “Café Constance”.

On March 27, 2024, the Federal Court of Appeal (the FCA) released its decision in French v Royal Canadian Legion (Dominion Command), 2024 FCA 63, that clarifies the scope of application of Subsection 64(2) of the Copyright Act which provides a defence against copyright and moral rights infringement in a design applied to a useful article produced in a quantity of more than 50.

On March 28, 2024, the Office of the Privacy Commissioner of Canada (OPC) published a Privacy Act Bulletin (Bulletin) summarizing key takeaways from its investigation into the 2020 cyber breach that affected the Canada Revenue Agency’s (CRA’s) sign-in portal and Employment and Social Development Canada (ESDC’s) “GCKey” authentication service.

On April 2, 2024, the Federal Court of Canada (FC) and the Federal Court of Appeal (FCA) published an invitation to participate in a global review of the Federal Courts Rules (the Rules). The invitation states that the 2024 Global Review Sub-Committee of the Federal Courts Rules Committee (the Sub-Committee) will conduct the global review.

On March 21, 2024, the Ontario Government announced that it had passed the Working for Workers Four Act, 2024 (the Act), which implements legislative amendments to various employment statutes in Ontario, creating further protections for workers in Ontario and imposing additional responsibilities on employers, such as a requirement for employers to disclose the use of Artificial Intelligence (AI) in the hiring process.

On March 13, 2024, the European Parliament approved the Artificial Intelligence Act (the Act), positioning the EU to have the world’s first binding comprehensive law on artificial intelligence (AI).

On March 13, 2024, the Federal Court of Appeal (the FCA) issued its decision in Google LLC v Sonos Inc., 2024 FCA 44, upholding the Federal Court’s decision (in 2022 FC 1116) that Sonos Inc. (Sonos) did not infringe claim 7 of Google LLC’s (Google) Canadian Patent No. 2,545,150 (the 150 Patent).

On March 6, 2024, the General Court of the European Union ( the Court) released its decision in Puma SE v European Union Intellectual Property Office (T 647/22), finding Puma SE’s (Puma’s) registration for a sneaker design (the Contested Design) invalid because it was disclosed on social media by singer, Rihanna, prior to Puma’s filing to register the Contested Design.

Facial recognition (FR) technology has the potential to significantly improve the speed and scale of police-operated mugshot databases. However, the use of FR technology by law enforcement raises legal, privacy, and ethical questions that are not fully resolved by Canada’s current laws relating to the identification of criminals.

On March 1, 2024, the Supreme Court of Canada (SCC) issued its decision in R. v Bykovets, 2024 SCC 6, in which a 5-4 majority held that an Internet Protocol (IP) address attracts a reasonable expectation of privacy and that a request by the state for an IP address constitutes a “search” under Section 8 of the Canadian Charter of Rights and Freedoms (the Charter).

On February 28, 2024, the Federal Court of Canada (the Court) in Comité Interprofessionnel du Vin de Champagne v Coors Brewing Company, 2024 FC 169, dismissed an appeal of a decision of the Registrar of Trademarks (the Registrar), finding that the Registrar committed no error in concluding that special circumstances excusing non-use existed for recently acquired trademarks.

On March 12, 2024, the United States Patent and Trademark Office (USPTO) and the United States Copyright Office (collectively, the Offices) published the results of a joint study they conducted regarding issues of intellectual property (IP) and policy arising from the use of non-fungible tokens (NFTs). Ultimately, the Offices concluded that NFT-specific IP laws are not necessary or advisable at this time.