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On Friday the Supreme Court of Canada decided that famous trade-marks do not, in and of themselves, provide an absolute monopoly over the use of similar words or marks.
Two cases, one concerning doll-maker Mattel's BARBIE trade-mark and the other dealing with the Veuve Clicquot champagne brand, were heard and decided together.
The cases are notable for two reasons. First, Justice Binnie has yet again demonstrated a real understanding of the purpose of trade-marks protection and the need for balance in intellectual property law. I'm quoted in the media as saying, "the latest judgments fit into a pattern of Supreme Court rulings that carefully weigh - and constrain - intellectual property rights." Howard Knopf and Michael Geist have also emphasized this point.
A second (perhaps less obvious, but practically important) point concerns the rules of administrative law. The Mattel case in particular underscores the significance of the standard of judicial review applied in cases like this. The Court did not review the Trade-marks Opposition Board's decision for "correctness", but instead merely subjected it to a "somewhat probing" examination for "reasonableness". This is a high hurdle for applicants seeking judicial review to clear. The topic of standards of review may sound dry, but it is often determinative of success or failure in appellate litigation. For more information, check out my co-authored book on, " Standards of Review of Federal Administrative Tribunals." A third edition will be out later this year.
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