On 29 November, Lululemon Athletica Canada Inc. (“Lululemon”) filed to sue Peloton Interactive Inc. (“Peloton”) in California alleging infringement of six different US design patents in a high-profile legal battle in the athletic leisure apparel space. Peloton has pre-emptively filed on 24 November in New York.

The situation is not always this tense between the two companies. In 2016, Lululemon and Peloton launched a co-branding relationship, with Lululemon providing Peloton with apparel, and Peloton selling the merchandise with its own trademark alongside Lululemon’s logo.

However, earlier this year, Peloton ended the relationship and shortly after announced its own private label, Peloton Apparel. In response, Lululemon accused Peloton of copying its designs and pushing out copycat products.

Legal experts suggest that the infringement claim may be difficult to prove because subtle variations could be enough for a court to dismiss complaints of infringement. However, the legal experts feel that Lululemon has a strong case with its allegation of unfair competition especially given the timing of Peloton’s actions.

For the full story, read here.

The Canadian Intellectual Property Office (CIPO) has launched a new online national entry request tool for Canadian national phase entries of international PCT patent applications. The new tool was introduced as part of CIPO’s overall IT modernization. Advantageously, national phase entry requests no longer need to be submitted via CIPO’s general correspondence form and a Canadian application number can be obtained immediately.

Read more here.

The Humboldt Broncos, the hockey team who’s team members were involved in a tragic bus crash in 2018, have secured trademark registrations for their name and logo. The team registered the trademarks in part to deal with unauthorized uses by third parties.

Read more here.

The USPTO is currently preparing a report on reforming 35 USC 101 (section 101, which defines what inventions are patentable) for March 2022. They are asking key patent stakeholders how changing patent eligibility law will have an impact on technological investment and innovation.

There is a deep divide in the responses from different facets of industry. Pharmaceutical companies and other life science companies are urging change. They say they cannot justify major investments into technologies if they cannot guarantee the patentability of the inventions. Alternatively, other big tech companies wish to keep section 101 to help protect themselves in litigation and to help attack improperly granted patents.

This is not the first attempt to amend sections 101 or 112, the previous one being in 2019. Those amendments also failed due to lack of consensus in the patent community. Several ideas have been proposed to break the deadlock in the community, including broadening section 101 while putting more weight on section 112 (patent specification requirements). This faced similar issues to 101 reform, where the impact is different for different industries.

Read the full story here.

The US Copyright Office has introduced broadened exemptions where circumventing software copy protection may be permissible, including in the context of repairing consumer products that use software. Such consumer products would include cell phones and laptops, for example, and the broadened exemption is directed towards the “right to repair” such products.

Generally, Section 1201 of the Digital Millennium Copyright Act prohibits circumventing technological measures used to prevent unauthorized access to copyrighted works such as books, movies and computer software. Exemptions to this general prohibition are prescribed and reviewed by the US Copyright Office periodically.

The newly introduced exemptions include an exemption related to “computer programs that are contained in and control [a consumer device] when circumvention is a necessary step to allow… diagnosis, maintenance, or repair of such a device” and not for accessing other copyrighted works.

For more information, please see: the Final Rule adopting the new exemptions and an article discussing the exemption related to repairing consumer devices

The European Patent Office (“EPO”) recently released a study entitled Patents for tomorrow’s plastics: Global innovation trends in recycling, circular design and alternative sources.  The study focuses on the future of plastics and how new technologies can aid in a more sustainable future. Key findings of the study include that chemical and biological recycling methods saw the most patenting activity from 2010 to 2019 out of all recycling methods and that in the field of bioplastics the healthcare and cosmetics & detergent industries led patenting activity from 2010 to 2019.

To read the key findings of the study click here or to read the study click here.

Hudson’s Bay Company (HBC) has filed a statement of claim in the Federal Court against the Moniz family over various trademark applications and corporate registrations containing the mark “Zellers”.

HBC accuses members of the Moniz family of trademark infringement, depreciation of goodwill and passing off, which is the deceptive marketing or misrepresentation of goods.

The Zellers department store was founded in 1931 and acquired by HBC in 1978. By the late 1990s, there were about 350 Zellers stores. However, Zellers began losing ground to competitors such as Walmart and in 2020, HBC closed down the last of Zellers stores. Despite the demise of Zellers, HBC claims that it has not abandoned the Zellers trademarks and logos and continue to have plans for the brand. For example, HBC launched a pop-up Zellers shop inside a Hudson’s Bay store in Burlington, Ontario, last summer.

For the full story, read here.