Patent and trademark infringement alleged in federal court cases this coming week
This coming week, hearings scheduled before the Federal Court of Canada involved matters relating to the Patent Act, the Trademarks Act, the Security of Information Act, the Canada Evidence Act, and the Criminal Code.
Federal Court
The court set the cases of Sea Tow Services International, Inc. v. C-Tow Marine Assistance Ltd., T-877-22 and C-Tow Marine Assistance Ltd. v. Sea Tow Services International, Inc., T-901-22 on July 9, Tuesday. These two closely-related proceedings involved trademark ownership and infringement issues.
In 2014, Sea Tow Services International, Inc. registered two Canadian trademarks with the registration numbers TMA870561 for SEA TOW & Design and TMA870562 for SEA TOW. In 2015, C‑Tow Marine Assistance Ltd. filed two Canadian trademark applications with the application numbers 1755489 for C-TOW and 1755490 for C-TOW & Design.
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After an examiner cited Sea Tow’s registrations as an obstacle to registering C‑Tow’s applications, C‑Tow brought a court application (T-901-22) arguing that the registrations were invalid. A week later, Sea Tow filed an action (T-877-22) alleging breaches of ss. 7(b), 19, 20, and 22 of the Trademarks Act, 1985 and seeking the withdrawal of C‑Tow’s trademark applications.
The court began managing these two proceedings together. C‑Tow moved for leave to serve further affidavits in its court application. Last Jan. 22, in C-Tow Marine Assistance Ltd. v. Sea Tow Services International Inc., 2024 FC 101, the Federal Court granted C‑Tow’s motion, subject to certain terms.
Having the same evidentiary record in the two court files would best serve the interests of justice, the Federal Court explained. The judge hearing these related proceedings should not have to make factual findings on different and potentially conflicting evidence from witnesses, the court said.
The court scheduled Attorney General of Canada v. Ortis and Director of Public Prosecutions, DES-5-20 on July 10, Wednesday. The private respondent, a former civilian member of the Royal Canadian Mounted Police, faced charges for offences under the Security of Information Act, 1985 and the Criminal Code, 1985.
Crown disclosure was redacted to protect information that, if released, would allegedly injure international relations, national defence, or national security. The federal attorney general applied for an order confirming the prohibition on disclosing the redacted information under s. 38.04 of the Canada Evidence Act, 1985.
In July 2021, in Canada (Attorney General) v. Ortis, 2021 FC 737, the Federal Court confirmed the prohibition on publishing the information, evidence, and submissions presented by the Public Prosecution Service of Canada during the public hearing of the application.
First, the court ruled that openness would pose serious risks to trial fairness and to the effectiveness of the publication bans previously ordered. Second, the court found the requested order necessary since there were no reasonable alternative measures to prevent the risks. Third, the court held that the benefits of the requested order outweighed the negative effects.
The court set Proslide Technology, Inc. v. Whitewater West Industries, Ltd., T-1449-20 on July 11, Thursday. Here, the plaintiff brought an action claiming that the defendant infringed five patents, among other types of intellectual property.
The defendant moved for leave to amend its statement of defence and counterclaim. Some of the proposed amendments alleged that the five patents were invalid because they failed to correctly and fully describe the invention. The defendant later appealed a court order partly denying its motion.
Last Feb. 2, in Proslide Technology, Inc. v. Whitewater West Industries, Ltd., 2024 FC 175, the Federal Court dismissed the appeal and refused to grant leave for the defendant to apply to further amend its statement of defence and counterclaim.
The challenged order contained no palpable and overriding errors in its articulation of the law of sufficiency of disclosure or in its findings that the proposed amendments had no reasonable prospect of success and were not particular enough, the court said.
The court scheduled Hardy v. Attorney General of Canada, T-143-18 on July 12, Friday. Here, the plaintiff filed an action alleging that Canada breached duties that it owed to those admitted to Indian hospitals. The action asked for damages and certain declarations.
In January 2020, in Hardy v. Canada (Attorney General), 2020 FC 73, the Federal Court certified the action as a class proceeding and defined the primary class, the family class, and the class period. The court also appointed class counsel and representative plaintiffs for the primary and family classes.
The court set Hudson v. His Majesty the King, T-723-20 on July 12, Friday. Canada moved to stay this proposed class proceeding on the ground that the proposed class and claims fell within two certified class actions: Greenwood v. Canada (T-1201-18) and Association des membres de la police montée du Québec inc. v. His Majesty the King (500-06-000820-163).
Canada claimed that all three proceedings involved the same factual background, alleged wrongdoing, alleged losses, and dispute or subject matter, namely whether the RCMP failed to provide a workplace free of harassment and/or discrimination, intimidation, and bullying.
In January 2023, in Hudson v. Canada, 2023 FC 35, the Federal Court dismissed the motion to stay the present proposed class proceeding. Canada characterized the claims too broadly, the court said. The factual basis of the present proceeding was distinct from the basis of the two certified actions, the court added.