Creativity Life Cycles : Canadian Trademark Agent and Lawyer : Joshua MacFadden : MacPherson Leslie & Tyerman Law Firm : Patents, Intellectual Property

Know what you have.   Know what  your business owns and what is licensed into the organization.  Consider whether a client deliverable, an internal document or module of software (or a portions thereof) are developed, owned or licensed from a third party?

Protect what you have.   If a deliverable or work product is owned by your company consider whether it should be protected by IP registration or trade secret policies.  If you are unsure, contact your legal advisor.

Put IP Notices on original materials. This includes appropriate notices, symbols and disclaimers for your IP, for example:

• Copyright notices include the © symbol and copyright notices such as “© 2010 . All rights reserved.”;
• Patent rights can be indicated on a product or its packaging (i.e. Canadian pat. No. 1,234,567); and
• Trademark rights can be indicated with use of the TM symbol or ® symbol for registered marks along with trademark notices such as “ is a registered trade mark of work”.

Make sure Consulting and Employment Agreements are in place to address Confidentiality and IP Ownership. Make sure written agreements are in place referencing commitments of non-disclosure, confidentiality and IP ownership before disclosing IP to employees or potential employees or engaging outside consultants.  If there is not an effective agreement in place, a consultant, for example, may claim IP ownership or otherwise misuse key information or materials for their own benefit or for others in the industry.

Mark  confidential information as “CONFIDENTIAL”. Where documents contain confidential information, mark the document “Confidential” and protect it from unauthorized disclosure.  Only discuss confidential matters internally on a “need to know” basis and do not disclose to a third party unless effective confidentiality and non-disclosure agreements are in place.

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With our change of the calendar to 2012 it is worth noting the many artists, writers, lyricists and other 'creative types' whose work now passes into the "public domain" as a result of applicable copyright laws (i.e. in Canada, the life of the author/creator plus fifty years; in other jurisdictions, the life of the author/creator plus seventy years). 

With the help of a third party blog post entitled "Public Domain Day 2012", the unofficial list of creators whose published works have potentially* entered the public domain in Canada includes, among others, Ernest Hemingway and Carl Jung, both of him died in 1961.  In other jurisdictions (i.e. Europe) where the relevant date is 1941, the list of creators includes such prominent figures as James Joyce, Virginia Woolf, and Frederick Banting.

* It is important to note that entry into the Public Domain is not automatic and subject to many qualifications including works of joint authorship, unpublished/posthumous works, retroactive extensions, etc.  If in doubt, contact legal counsel for advice.

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IP is an asset of every business and indeed, may be the most valuable assets of a business.  Such assets include brand names, logos, slogans, domain names, software code, literary works, inventions, confidential information and trade secrets (i.e. everything from your customer list to your corporate logo).

For many businesses IP may be unprotected, under-exploited, or vulnerable to theft or infringement by third parties thereby reducing the potential competitiveness of a business and opportunities for growth.   Any individual or organization which invests in innovation fails to capture and exploit the true value of that investment if IP rights are not protected, commercialized and enforced.  Moreover, to the extent that a third party’s IP (i.e. software) is being used in conducting business, it is essential to know what your rights and obligations are to any such third party to ensure you are not violating the rights of third parties.

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The unauthorized use of the Conservative Party of Canada's logo on a website has placed Michaela Keyserlingk, an anti-asbestos advocate, in hot water.

Ms. Keyserlingk is the widow of Robert Keyserlingk, who died in 2009 of mesothelioma, a cancer caused mainly by asbestos exposure.  She started her website (www.canadianasbestosexports.ca)  to generate awareness on the dangers of asbestos in an effort to stop the mining and export of the product from Canada and claims that the unauthorized use of the CPC logo is merely to gain the attention of the Canadian government.  Ms. Keyserlingk has made statements to indicate that she will remove the logo if a high-ranking member of the Conservative party meets with her to account for its continued support of the Asbestos industry.  To date, the logo remains on the website.

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True North Sports & Entertainment, owners of the Winnipeg Jets, have today released images of their new logos for the upcoming NHL season:

The logos represent a departure from the previous "Jets" logo as the team seeks to make a new identity from that of the former Winnipeg club. and an opportunity to generate additional fan enthusiasm for the return of NHL hockey to the city.

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Within one day of the raid on Osama bin Laden's compound, Disney Enterprises, Inc. filed three trademark applications  with the U.S. Patent and Trademark Office ("USPTO") for the trademark SEAL TEAM 6 in association with a range of products and services, including:  entertainment and education services, clothing, headwear, footwear, a range of toys, electronic games, etc. and  "snow globes", Christmas stockings, tree ornaments, and decorations.

Given the rushed nature of these "intent to use" filings it will be interesting to see whether the full range of products do, in fact, appear on department store shelves in the months ahead or whether Disney's filing was merely an effort to stake a claim on the Trademarks Register while they contemplate the business case and/or approach to capitalizing on one of the more significant United States news stories in recent years.

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The Canadian Internet Registration Authority ("CIRA") has distributed an announcement that it has received reports of domain name holders of a phishing scam which is utilizing images from the CIRA website.  Generally, such scams involve an email sender masquerading as a trustworthy entity seeking to acquire sensitive information from the email recipient such as usernames, passwords and credit card information. 

In this case, the scammer masquerades as CIRA by using CIRA logos, etc. to collect personal information and credit card numbers from those whom have registered .ca domains. 

CIRA advises that it does not ask domain owners for credit card information (which is instead gathered by .ca certified domain Registrars) and if such information has been provided it is recommended that the credit card company be advised immediately.

Anyone with questions or concerns may contact CIRA by telephone at 1-877-860-1411 or by email at info@cira.ca.

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Hot on the heals of the announcement of the Zellers Inc. purchase by Target Corporation, a statement of claim has been filed by Fairweather Ltd. against Target seeking damages of $250 million for claims of trademark infringement, diminished goodwill while also seeking an injunction to prevent adoption of the "TARGET" trademark in Canada. 

Notably, Target Brands Inc. ("Target USA") has several trademark applications in the midst of opposition proceedings

In the circumstances Target USA will have the option of either re-branding Canadian operations or acquiring or licensing rights to the trademark from Fairweather.

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                                                                                                       Image Courtesy of Starbucks Corporation.

Starbucks Corporation has announced it will be rolling out a new logo in its stores in March, 2011 as part of the company's 40th anniversary.  As the evolution of the Starbucks brand (above) clearly indicates the new logo avoids referencing both "Starbucks" and "coffee" which has sparked speculation that the company is moving toward expanding the company's product focus beyond the realm of coffee, specialty beverages and related products and services.  Indeed, in an announcement on the company's website, Starbucks president and CEO Howard Shultz acknowledges the company's movement toward new products and "channels of distribution" as the 40th anniversary roll out approaches.  The customer comments on the new logo, (some of which appear on the same page as the Shultz announcement), appear mixed while some marketing professionals acknowledge the trend of certain well-known brand owners (i.e. Nike) have been moving toward removal of brand names alongside company logos.

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