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    • Month: December 2019

    How Do I Obtain Intellectual Property Rights

    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@dsf.theleadshub.biz

     

    “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 Property
    What happens when ex-spouses have opposing views on whether or not to vaccinate their children?

    What Happens When Ex-Spouses Have Opposing Views On Whether Or Not To Vaccinate Their Children?

    This polarizing issue has become the subject of significant media coverage as anti-vaccine groups are becoming increasingly vocal. One father even launched a GoFundMe campaign in order to appeal an arbitrator’s decision that allowed the mother to refuse to vaccinate their children. The arbitrator cited the work of anti-vaccine activists to support his decision, and as a result, a number of experts have come forward to testify for free during the appeal of the decision.

    How Have The Courts Qualified Anti-Vaccine Experts in Past Cases and How Have Custody Arrangements Been Decided as a Result?

    In G. (C.M.) v. S. (D.W.), 2015 ONSC 2201, the father, in this case, refused consent for his 10-year-old daughter to travel unless she was vaccinated. As a result, he brought a motion to change the joint custody order to sole custody when it came to medical-related decisions. The hearing went on to become a battle of the experts.

    The motion judge found that the mother demonstrated a “lack of objectivity and thoroughness of research” and went on to critique the experts she put forward for their dearth of objective facts, research and literature that was peer-reviewed.

    The motion judge also considered the evidence of the amicus curiae who pointed out that Canadian Public Health Policy is in favour of vaccinations which has led to the decline or elimination of potentially fatal illnesses. Their testimony was found to be based on many years of research and clinical participation in the field of infectious diseases.

    Furthermore, the Immunization of School Pupils, R.S.O. 1990, CHAPTER I.1, requires the immunization of school children unless exempted for religious beliefs or as a matter of conscience. In the end, the motion judge granted the father decision-making ability with respect to vaccinations and ordered the mother to no longer give the child negative information about vaccines.

    This decision was circulated and heavily cited by the judge in the Nova Scotia Supreme Court decision W. (P.) v. M. (C.), 2017 NSSC 91. The judge, in this case, found that the mother’s rigid and inflexible approach when it came to vaccinations demonstrated an inability to make medical decisions that were in the child’s best interests. As a result, the father was granted sole decision-making authority with respect to medical decisions, including vaccinations without the mother’s consent.

    Finally, in Di Serio v. Di Serio, 2002 CanLII 49568, the motion judge found that the father’s affidavit and book of authorities citing various anti-vaccine articles were not considered properly tendered evidence from a qualified expert. The mother called the children’s family physician to provide an opinion that they are in need of childhood immunizations and again the Immunization of School Pupils Act was cited. As a result, the motion judge found it was in the children’s best interests to be vaccinated.

    Based on the case law, it appears that the father appealing the arbitrator’s decision has a fighting chance in court. Unfortunately, since the decision was rendered, his two young children contracted whooping cough, an infection avoided by one of the standard childhood vaccinations. Proponents of both sides of the debate will surely be closely following and anticipating the decision’s release.

    For more information about decision making authority when it comes to the medical care of your children contact our family law group.

     

    “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, Family Law
    The Impact of An Aging Workforce

    The Baby Boom Shift: The Impact of An Aging Workforce, the Projected Big Business Transfers and the Millennial Changeover

    The baby-boomer generation (those born between 1946 and 1964) represents a significant share of the Canadian population.  While many within this category are opting to continue working well into what would traditionally be their retirement years, it appears that once they do retire, the resulting mass retirement will initiate an abundance of handovers of wealth and business ownership.

    Transformation of the workforce as we know it is therefore on the not-too-distant horizon. An entire generation of baby boomers will depart the workforce, taking with them their talent, knowledge and industry familiarity, and potentially creating a talent gap.

    Are we in a baby-boomer succession crisis?  

    A vast number of baby-boomer business owners do not have a succession strategy in place. At times, finding a successor can be challenging.  As a result, what could be deemed as an undesired consequence becomes unavoidable, and the business may have to be dissolved.  Should this occur with any degree of frequency, it could have a significant negative impact on the Canadian economy as a whole.

    Planning ahead

    Several small business owners depend on the sale of their business as a source of retirement income.  Preparing for a smooth and efficient transition is therefore as important as the day-to-day operation of the business.  This preparation eliminates the added pressure of leaving the future of the business to chance and increases the likelihood of receiving fair value for it upon its ultimate transfer.

    There are various benefits to devising a formal succession plan. Formal written succession plans are typically prepared with the help of relevant professional advisors.  The input of legal professionals can address a number of issues, including earn-outs, restrictive covenants, and developing a dispute resolution mechanism.

    Business owners considering developing and implementing a succession plan and/or a merger or acquisition, or those in need of general corporate and commercial counsel, should seek guidance from an experienced legal professional.

    Contact Elisabeth Colson of Devry Smith Frank LLP for experienced corporate assistance, at elisabeth.colson@dsf.theleadshub.biz or at (416) 446-5048.

     

    “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, Corporate Law No comments yet
    Our Child Has Come to Live with Me, How Do I Stop My Child Support Payments to My Ex?

    Our Child Has Come to Live with Me, How Do I Stop My Child Support Payments to My Ex?

    Child support payments are based on where the child actually lives, not where a Court Order or Separation Agreement says that they are living, or should be living. Since child support is the right of the child, it is also irrelevant as to why the child is residing in one place as opposed to another; child support goes to the parent with whom a child is primarily living with. However when a child’s situation changes, the Family Responsibility Office (FRO) does not have the authority to stop collecting child support.

    As with many instances within family law, there are various ways in which one can resolve a situation.

    If both parents agree that the child has changed homes, is not longer entitled to child support (note: child support does not always end when a child turns 18), or is living on his or her own, then they can write to the FRO and request a cease on further child support payments. Subsequently, the FRO will verify the information with each parent before honouring the request. Alternatively, the receiving parent can obtain a withdrawal form as a means of notifying the FRO.

    When a child changes residence, child support payments should not be terminated. The parent whom the child was living with initially, is now responsible for making child support payments. Because of this, some parents are reluctant to acknowledge that a child has moved. However, not paying child support, and not agreeing that you should stop receiving child support, is highly frowned upon in family court.

    Cases whereby one parent refuses to adhere to the guidelines, often results in having to sit in front of a judge. Only a judge can look at the circumstances and determine which parent should be paying support and how much (it is also possible to arbitrate those issues if both parents agree) The judge will inform the FRO on how to proceed.

    Many people may avoid seeking the appropriate change to child support because of the complexities of the family court’s procedures. The Ontario Government’s Child Support Online Recalculation Service only changes support when a support payer’s income changes in a particular way; it cannot change support because a child’s circumstances changed.

    Fortunately, there is a simplified court procedure for changing an existing support order. That procedure is based on the premise that there is no dispute about the facts of the case. Where a child has clearly changed homes, that fact should be clear to the Court. Ideally, when a parent serves a “Motion to Change Support”, that will be enough for the other parent to acknowledge the child has moved and agree to a change in support. A party who fails to acknowledge the obvious and is ultimately forcing a parent through the court process, can expect to pay the majority, or all, of the other party’s legal fees.

    Certified Specialist in Family Law John Schuman, has extensive experience assisting complicated child support and custody/access parenting matters. Contact John Schuman at 416-446-5869 or john.schuman@dsf.theleadshub.biz

    “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, Family Law
    More Changes to the Construction Lien Act Are Coming in 2019

    More Changes to the Construction Lien Act Are Coming in 2019

    Ontario’s new Construction Lien Amendment Act (the “Act”) has significantly overhauled Ontario’s construction law rules. While the first set of the amendments have already come into force (see our previous blog here), the second set of changes with respect to prompt payment, a new adjudication process and procedural rules are set to come into force on October 1, 2019.

    Prompt Payment

    The Act imposes some tight timelines for payments to contractors and subcontractors in situations involving both public and private contracts. Under the Act, outstanding amounts between an owner and contractor must be paid within 28 days of a proper invoice. Subsequent payments to subcontractors must be paid within 7 days that the contractor receives the payment from the owner. If the contractor was not paid within the 28 day period, the contractor can either pay out its subcontractors anyways or issue a notice of non-payment in the prescribed form. If the owner disputes a portion of the funds, the owner must still pay out the undisputed amount within 28 days. If the contractor only receives partial payment from the owner, it must still distribute the funds to its subcontractors within 7 days, either in full or rateably.

    The sending of a proper invoice triggers these timelines and payment cannot be made contingent upon certification or the prior approval of the invoice by the owner. The owner is required to comply with these timelines or provide a notice of non-payment within 14 days. The contractor must give a notice of non-payment within 7 days after receiving a notice of non-payment from the owner or, if the owner has not issued said notice, within 35 days from the date of delivery of a proper invoice. Any payments made outside of the timelines will have interest accrue at a specified interest rate (as per the Courts of Justice Act, s.127(2)).

    As an invoice triggers these timelines, the Act sets out what is contained in a proper invoice:

    • the contractor’s name and address;
    • the date of the proper invoice and the period during which services or materials were supplied;
    • information identifying the authority (typically the contract) under which services or materials were supplied;
    • description, including quantity, of the services or materials supplied;
    • the amount payable for services or materials supplied and payment terms;
    • the name, title, telephone number, and mailing address of the person to whom payment is to be sent; and
    • any other information that may be prescribed by the contract.

     

    New Adjudication Process

    In an effort to facilitate the quick resolution of construction issues, the Act introduces a new interim adjudication process. The intention of the adjudication process is to allow parties to resolve issues while still pursuing the preservation/perfection of a lien under the Act. Parties are free to agree on any adjudication terms to be added to their agreement.

    Several types of disputes can be referred to adjudication, including, but not limited to, delays, set-offs, deductions, security, proper invoicing and the valuation of work, services and materials. The scope of the availability of adjudication is broad and includes “any other matter that the parties to the adjudication agree to.”

    Adjudicators are appointed from a Authorized Nominating Authority registry. Adjudicators cannot be appointed in advance and must be nominated only when a dispute has arisen.

    Delivering a Notice of Adjudication commences the process. Within 30 days of the Notice, the adjudicator must provide a written determination of his or her decision, with reasons. Adjudication decisions are binding in the interim and enforceable. As such, payment must be made as per the adjudicator’s determination within 10 days of the decision or else the amount is subject to non-waivable interest. The Act allows a party to suspend work as per an adjudicator’s determination but does not allow for the suspension of work until the adjudication is complete. Any decisions rendered outside 30 days are of no force or effect. If a party does not agree with the adjudicator’s determination, they are allowed to appeal it to the courts or an arbitrator as well as negotiate a written agreement varying the terms.

    Jurisdiction and Procedure

    As the Act will have an adjudication process, several provisions relating to jurisdiction and procedure will be repealed. For instance, leave for interlocutory steps is will no longer be required, lien and trust claims will be brought in a single action, and the requirement that a lien action must be commenced in the jurisdiction where the land is located will be removed.

    What this Means

    The laws with respect to construction in Ontario and elsewhere are changing. It is very important to consult an experienced construction law lawyer with respect to vetting your organization’s invoices, contracts and general practices.

    “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, Construction Law