Canadian artists should take note as an Artist’s Resale Right may be on the horizon in Canada. In its 2025 Budget, the Canadian federal government announced its intention to create such a right through amendments to the Copyright Act. As discussed in the Budget, the Artist’s Resale Right would provide the creators of original visual artwork with a royalty when their work is resold under certain eligible sales.

While not yet introduced in any proposed legislation, it may be notable that several other countries (such as France and Australia) have previously introduced Artist’s Resale Right regimes, so Canada would have many examples to consider if and when implementing its own Artist’s Resale Right.

More details can be found in Chapter 3 of the 2025 Budget.

A group of major Canadian media organizations (the “Plaintiffs”) has scored an early procedural victory against OpenAI in Ontario. Justice Kimmel of the Ontario Superior Court held that Ontario has jurisdiction over the Plaintiffs’ claims and is the appropriate forum. This procedural victory is encouraging for Canadian publishers because it lets Canadian courts adjudicate AI training disputes involving copyrighted material under Canadian copyright law.

The Plaintiffs sued a number of OpenAI entities in Ontario for copyright infringement, breach of contract and unjust enrichment arising from the Internet-based activities of OpenAI. These activities included allegedly scraping the Plaintiffs’ web content and data, which included copyrighted content, using that data to train AI models, and reproducing and using the copyrighted content for commercial purposes (such as ChatGPT). OpenAI asked the Court to dismiss the proceeding on the basis that the OpenAI entities are based in the United States and should not have to litigate this case in Ontario.

The Court disagreed. It held that it has subject matter jurisdiction over all the asserted claims and that the Plaintiffs had established presumptive connecting factors for the Court to assume jurisdiction over at least some of the OpenAI entities because key aspects of the OpenAI business and the alleged wrongdoing were meaningfully tied to Ontario. For example, OpenAI allegedly scraped data from Canadian websites, made contractual agreements in Ontario, and made commercial offerings in Ontario. The Court also held that OpenAI failed to demonstrate that the United States was clearly the more appropriate forum for the pleaded claims.

Click here to read the full case.

The Federal Court found that the Commissioner of Patents failed to follow the jurisprudence on determining patentable subject matter.

In the recent decision of Dusome v. Canada (Attorney General) 2025 FC 1809 (“Dusome”), which involved a patent application for a method of playing a poker game with physical cards or on a computerized system, the Federal Court found that the Commissioner of Patents committed a number of errors which include:

1. failure to properly construe the claims even though the Commissioner correctly stated the law on purposive construction;
2. improper assessment of subject-matter patentability based on what the Commissioner considered to be the “actual invention” of the application as this approach was explicitly rejected by the Federal Court of Appeal in com Inc v. Canada (Attorney General), 2011 FCA 328;
3. improper approach and application of the “actual invention” question in that the Commissioner improperly stripped away all of the physical elements of the invention, leaving only the new knowledge added to the art of poker and thus explained why the Commissioner considered the actual invention to be rules for a game which lack physicality and therefore constitute excluded subject-matter; and
4. improper approach to the assessment of patentable “art” under section 2 of the Patent Act.

Dusome is a reminder that if the Commissioner of Patents misapplies the law on subject matter eligibility for a patent application, appeals to the Federal Court are available.

In the end, the Federal Court remitted the patent application back to the Commissioner of Patents for reconsideration with regards to the question of subject matter eligibility.

Click here to read the full case.

Trademark registrants take note – a recent decision from the Trademarks Opposition Board (“TMOB”) serves as a reminder of the importance of using your registered trademark as it is registered.

In Gabriel Meets Apparel Inc. v Perry Ellis International Europe Limited, 2025 TMOB 201, a Section 45 summary expungement proceeding was initiated against Perry Ellis’ trademark registration. The trademark registration in question was for the design of Perry Ellis’ “Original Penguin” design (the “Registered Mark”).

Perry Ellis filed evidence of use in association with certain goods in the registration. The design shown in Perry Ellis’ evidence showed use of a penguin design (the “Penguin Mark”) that differed from the Registered Mark. The Requesting Party argued that “the [Registered Mark] is a caricature of a penguin in a squat posture more akin to a baby penguin, while the [Penguin Mark] is a caricature of an elongated adult penguin…the head, beak, and limbs of the penguins in each design are turned in opposite directions.”

The TMOB reviewed the law on trademark deviation and noted that “where the trademark as used deviates from the trademark as registered, the question to be asked is whether the trademark was used in such a way that it did not lose its identity and remained recognizable in spite of the differences between the form in which it was registered and the form in which it was used”. The TMOB concluded that “[w]hile the direction of the penguin’s head differs, the penguin’s head remains oriented in profile and, as such, I consider this difference to be minor” and that “any evidenced use of the [Penguin Mark] constitutes use of the [Registered Mark].”

This case is a reminder that, despite some variation being permissible, trademark registrants should take care to use their trademark as registered to avoid loss of rights.

A copy of the decision is available here.

In NCS Multistage Inc. v Kobold Corporation, 2025 FCA 187, the Federal Court of Appeal provides a helpful reminder on claims construction, including that dependent claims should generally be construed more narrowly than independent claims and that limitations in dependent claims should not be excluded from embodiments encompassed in the claims from which they depend.

In the underlying Federal Court decision, the Court held that claims 6, 11, 12, and 16 of Kobold’s Canadian Patent No. 3,027,571 were infringed by NCS.

The claims were directed to a downhole apparatus for hydraulic fracturing of oil- and gas-bearing rock formations that included first and second annular chambers between a housing and a moveable sleeve (claim 6) separated by an annular barrier (claim 11 depending from claim 6). The annular barrier was moveable (claim 12 depending from claim 11) and further included “at least one metering passage fluidly connecting the first and second chambers across the barrier” (claim 16 depending from claim 11 or claim 12).

While not at issue, claim 13 (depending from claim 12) was relevant to the Federal Court’s reasoning and recited “a seal arrangement … between the sleeve and the housing.”

Before the Federal Court, NCS argued that claim 12 could include embodiments having an annular barrier seal as well as a metering passage. However, the Court ruled this was a “violation of [the principle of] claim differentiation” because claim 13 would be redundant if claim 12 included an annular barrel seal. Accordingly, the Court held that claim 12 could not include embodiments having an annular barrel seal.

On appeal, the Federal Court of Appeal determined that the Federal Court had incorrectly applied the principle of claim differentiation when construing claim 12. Claim differentiation prohibits reading limitations from dependent claims into the claims from which they depend as limitations of those preceding claims. However, it does not act to exclude the limitation of the dependent claim as a feature of an embodiment covered by the preceding claim. That is, in the present case, “claim 12 encompasses two embodiments of the annular barrier, one that has a gap and one that is sealed…[;] claim 12 encompasses, but is not limited to, the seal embodiment contemplated by claim 13.” This construction of claim 12 better follows the principle that dependent claims should generally be construed more narrowly than the claim from which they depend.

The Federal Court of Appeal remitted the matter back to the Federal Court for reconsideration using the correct construction of claim 12.

The full decision is reported here.

At the request of McMillan LLP, the Registrar of Trademarks issued a section 45 notice requiring Gallagher Benefit Services (Canada) Group Inc. to demonstrate use of the trademark OPTIMUM TALENT in Canada within the past three years. In a recent decision issued by the Trademarks Opposition Board (TMOB), the registration of the trademark was maintained, as the TMOB was sufficiently satisfied that the trademark was used in Canada during the relevant period.

In its decision, the TMOB reaffirmed that while the evidentiary threshold in section 45 proceedings is low, bare assertions of use are insufficient and the evidence must demonstrate that the mark was used or displayed in the performance or advertising of the services.

The trademark OPTIMUM TALENT covered a wide range of human resources and consulting services, including career management, recruitment, coaching, organizational development, and strategic consulting. As evidence of use, Gallagher filed an affidavit enclosing printouts of different pages from their website extracted from the Wayback Machine archive, as well as copies of invoices showing how clients were billed for the services provided.

The TMOB noted that although the invoices did not cover each and every one of the services listed in the registration, the affiant confirmed in the affidavit that Gallagher offered and was able to offer each of the services during the relevant period.

The TMOB also noted that the fact that a trademark matched a company’s trade name does not exclude the trade name from also being used as a trademark.

Attention, pharmaceutical companies and medical practitioners! The Supreme Court of Canada (“SCC”) is poised to revisit one of the most consequential issues in Canadian patent law in the medical industry: the long-standing prohibition on patents for methods of medical treatment.

On 9 October 2025, the SCC heard arguments on the patentability of methods of medical treatment as a whole, and on the patentability of dosing regimes in particular.

Stakeholders in the pharmaceutical, biotechnology, and healthcare industries would be well advised to monitor this case closely. Any changes to the patentability of methods of medical treatments or dosing regimes may necessitate reassessment of patent strategies in the healthcare sector.

Click here for the SCC case information