E-Commerce

Question 1

Intellectual Property Rights

Answer 1

Intellectual Property Rights: Abstract property rights owned by persons who have rights in the use of the property.

Question 2

Copyright:

Answer 2

• Right to “copy” a literary or artistic work (includes software)
• The moment you create something that is creative (you own it) (second you write a code, song, etc. it is copyrighted and you own it, do not need to register it)
• Lasts for the life of the author + 50 years
  Publishing work on the internet does not make the work “public domain”
  “Fair Dealing” defence – reproduction for the purpose of criticism or private study, but need to cite author.

Question 3

Trademark

Answer 3

• a word (or words), a design, or a combination of these, used to identify the goods or services or brand of a person or organization.
• Logos, slogans, names of company
  Protects name/ attributes that promote a brand
• Must register trademark: Good for 15 years and renewable every 15 years.
• “Passing Off”: The tort for breaching trademark – can become an issue online.
• Domain names: Cybersquatting.

Question 4

Patents

Answer 4

• Exclusive right to invention for 20 years;
• Scientific or technological advancements
• Inventor must make the invention available to the public, by filing a description so that it can be duplicated once the patent expires.
• Must “file the patent” – they are approved as long as requirements are met, then people can challenge them as unenforceable.
• Business methods are patentable
• Factoring processes (ways of manufacturing that make processes more simple/ efficient)
• Patents can’t be on “ideas”, they must be novel, useful, ingenious. Must have sufficient proof at priority date.
  Invalid – if it is obvious, if it already exists

Question 5

Jurisdiction

Answer 5

Timing of acceptance – where does acceptance occur?
Wherever the receiver is located

Question 6

Courts will take jurisdiction over a matter if:

Answer 6

1. Traditional Factors
2. There is a “Real and Substantial Connection” to the Jurisdiction:
3. Forum Non Conveniens:

Question 7

Traditional Factors:

Answer 7

Defendant’s presence in the jurisdiction or consent to submit to the court’s jurisdiction.

Question 8

There is a “Real and Substantial Connection” to the Jurisdiction:

Answer 8

• Presumptive connecting factors:
• The Defendant is domiciled or resident in the province; (Lives there)
• The defendant carries on business in the province;
• Physical something in the province (employees, products)
• The tort was committed in the province; or
• A contract connected with the dispute was made in the province.

Question 9

Forum Non Conveniens:

Answer 9

Even if the court has jurisdiction over the matter, it can decline to exercise its jurisdiction if another jurisdiction would be clearly more convenient or appropriate:

Question 10

Forum non conveniens factors:

Answer 10

Service of documents
Availability of Witnesses
Enforcement of Judgment
Avoidance of multiplicity of actions
Standing
Applicable law

Question 11

Forum Non Convenience Enforcement

Answer 11

• There is no obligation for one jurisdiction to recognize the judgment of another jurisdiction. Questions arise to its legitimacy, including:
• Was the judgment made in the appropriate forum?
• Was the judgment legitimately obtained?
• Does the judgment offend against either natural justice or public policy?
• Need to apply to the court in the jurisdiction where assets reside and request recognition, or start a new action and seek judgment.

Question 12

Privacy/ Anti-SPAM

Answer 12

Privacy: Personal Information Protection and Electronic Documents Act, S.C. 2000 c. 5

Question 13

Canadian Anti-Spam Legislation (“CASL”):

Answer 13

• CASL was created in 2014 to reinforce best practices in email marketing and combat spam and related issues.
• CASL Consent – Express consent

Question 14

CASL Consent - Implied

Answer 14

• Implied Consent (section 10(9)/10(10) of CASL), will usually be due to an “existing business relationship”, which includes:

1.The purchase or lease of a product, good or service within the two-year period immediately before the day on which the message is sent.

2.Acceptance of a business, investment or gaming opportunity within the time frame of (1), above.

3. Bartering of anything mentioned in (1);
4. Written contract entered between the parties that is currently in existence or expired during the time period in (1)
5. Inquiry or application within six-month period immediately before the day on which the message is sent.