Plant breeders’ rights (PBR) are a form of intellectual property, somewhat similar to patents, that protect new plant varieties by offering plant breeders a limited monopoly on such new varieties.

Proposed amendments to the Plant Breeders’ Rights Regulations have been published, expanding the scope of what can be protected, extending the duration some plant varieties can be protected, and facilitating better access to the PBR framework. Specifically, major amendments are directed to:

• narrowing the scope of farmers’ privilege exemption, which provides farmers with the ability to save and reuse seed of a protected variety;
• extending the duration of protection for potatoes, asparagus, and woody plants; and
• relaxing certain filing requirements that may currently discourage PBR applications relating to electronic filing fees and advertisement as a factor in determining novelty.

The proposed amendments can be reviewed in full here.

Canadian trademark owners facing a “use” challenge must provide clear, specific, and time-relevant evidence to show use of the trademark—or risk losing their registration. The Federal Court’s decision in Power Herbs Wellness Trading Corporation v. Svenskt Kosttillskott AB makes it clear that weak or ambiguous evidence will not meet the legal threshold for proving use of the trademark.

In this case, the owner of the “Healthvell & Design” mark relied on Amazon webpage printouts, product labels, manufacturer invoices, and Health Canada webpages in an attempt to show use of the trademark. The Court found the owner’s evidence failed to connect the mark to products sold in Canada during the relevant three-year period, and in some cases, it was unclear which goods were even being shown.

This decision is yet another reminder that trademark owners must use their trademarks to preserve their rights and that in a Section 45 challenge, trademark owners must be able to present solid, direct evidence rather than relying on assumptions or indirect proof. Third-party webpages, generic references to the products, and undated images may not necessarily be sufficient to establish trademark use.

Trademark applicants should be aware that examination timelines for trademarks have decreased significantly.

Anyone who has applied for trademark protection in Canada in recent years knows that the examination wait times for trademark applications have been long. Until recently, trademark applicants could wait for three years or more before their trademark application would be examined. In this regard, please see our earlier article on this topic: https://patentable.com/cipo-updates-its-trademarks-service-standards/

Recently, the Canadian Intellectual Property Office (CIPO) has significantly reduced examination wait times and now estimates that processing times for new trademark applications will soon be approximately nine months.

As a consequence of the reduced examination times, CIPO recently announced that accelerated examination will no longer be offered to trademark applications using pre-approved goods and services from CIPO’s Goods and Services Manual (the “Manual”).

Although there will soon no longer be any accelerated examination incentive for using terms from the Manual, applicants seeking to minimize goods and services objections to their trademark applications may still find it valuable to do so. Using the Manual’s pre-approved terms can help reduce the likelihood of such objections, as these terms are already considered by CIPO to be in ordinary commercial and specific terms.

The recent decision by the United States District Court for the Northern District of California in Bartz v. Anthropic PBC is helping shape AI copyright law in the United States. In the decision, the Court evaluated Anthropic’s use of copyrighted material to train its AI model, Claude.

Under U.S. copyright law, the “fair use” doctrine allows for “transformative” uses of a work protected by copyright. The Court found that training a large language model (LLM) on copyrighted books was “exceedingly transformative.” It compared the training process to a human author being influenced by works they have read, thus qualifying as fair use. However, the Court distinguished between training the LLM on legally obtained works and works obtained through piracy, finding the former to be acceptable fair use and the latter a violation of copyright.

How a similar case would be handled in Canada is unclear. Under Canadian copyright law, the doctrine of “fair dealing” allows for the use of a copyrighted work without requiring permission of the copyright owner. The first step in assessing fair dealing is to determine whether the use fits into one of the statutory categories set out in the Copyright Act: research, private study, education, parody, or satire. To date, Canadian courts have not determined whether use of a copyrighted work for training a LLM qualifies as one of these categories.

A copy of the full decision is available here.

The Federal Court of Canada recently dismissed a patent infringement action brought by McCain Foods against a competitor, Simplot.

McCain Foods alleged that Simplot’s use of pulsed electric field (PEF) technology to treat vegetables infringed its Canadian patent, which claims a process that applies a “high electric field” to vegetables to reduce their resistance to cutting.

The decision centered on the term “high electric field” in the claims. The Court applied the principles of claim construction and reviewed extensive expert opinions in order to conclude that the reference to “high electric field” in the claims referred to electric fields in the range of 2-200 V/cm. Since Simplot’s PEF technology, which operated at 1,000 V/cm or higher, did not fall within the 2-200 V/cm range, the Court found that Simplot did not infringe the patent.

Alternatively, the Court held that even if “high electric field” was interpreted broadly enough to encompass PEF technology, the relevant claims would be invalid for overbreadth and lack of utility. The Court found that McCain’s inventors had never disclosed or contemplated using PEF technology as part of their invention, and the patent failed to either demonstrate or soundly predict that PEF technology would be useful for the claimed purpose. The patent disclosure lacked the necessary factual basis and line of reasoning to establish the utility of the invention when applied to PEF technology.

This case is an important reminder of the principles of claim construction. The decision illustrates the challenges of extending a claim’s scope to cover a technology that may not have been contemplated or disclosed by the inventors at the time of patent filing.

A copy of the full decision is available here.

Statutory damages can be substantial, particularly where many works are infringed.

In Canada, the remedies for copyright infringement include damages (based on the profits lost by the copyright owner because of the infringement) and an accounting of profits (based on the profits gained by the infringer because of the infringement). Alternatively, the copyright owner may elect statutory damages, which are fixed by the Copyright Act between $500 and $20,000 per infringed work if the infringements are for commercial purposes. Two recent related decisions of the Federal Court demonstrate that statutory damages can quickly add up.

Demirören TV Radyo Yayincilik Yapimcilik A.Ş. v. General Entertainment and Music Inc., 2024 FC 1127 (the “GEM Action”) and Yelda Haber Ve Görsel Yayincilik A.S. v. GLWiZ Inc., 2025 FC 1107 (the “GLWiZ” action) both concerned the same award-winning Turkish-language television programs produced and broadcast in Turkey by the plaintiffs (referred to as “Kanal D” for simplicity).

In the GEM Action, Kanal D granted licenses to the defendant’s (“GEM”) corporate predecessor to translate and broadcast the programs in Farsi. GEM continued to broadcast the programs over an IPTV service after the licenses expired and after the corporate predecessor ceased operations. The Court determined that copyright in 2,729 episodes of the programs had been infringed and awarded statutory damages of $10,000 per episode, for a total award of $27,290,000.

In the GLWiZ action, the defendants (referred to collectively as “GLWiZ”) had also made the programs available via an IPTV service and through streaming websites and apps. GLWiZ had initially acquired the programs from GEM under an agreement, but after the relationship between GLWiZ and GEM broke down and the agreement was terminated, GLWiZ continued to acquire the programs from GEM by recording GEM’s satellite signal. Kanal D discovered that the programs were available on GLWiz’s platforms during a meeting between the companies, leading to the litigation. The Court determined that copyright in 2,974 episodes of the programs had been infringed and awarded statutory damages of $2,000 per episode plus $10,000 for live broadcasting of certain Kanal D materials, for a total award of $5,958,000.

These cases serve as a cautionary tale for streaming content providers to ensure that they are properly licensed in respect of all the material available on their services.

The crux of one’s rights in a trademark lies in use of the mark. Upon issuance of a trademark registration, we advise owners that it is important to use the trademark on an ongoing basis, as marks not used in Canada during a three-year period following registration may be vulnerable to expungement.

Often, trademark owners use their trademarks through related companies or subsidiaries. For such use to benefit the trademark owner, the use should be under license and the trademark owner must have control over the character and quality of the associated goods and services.

In a recent decision in Wheel Pros, LLC v. KTM Components GmbH, the Trademark Opposition Board held that use of a trademark by a licensed subsidiary enured to the benefit of the owner of the registration. In the affidavit evidence filed by the owner of the registration, the affiant swore that the owner exercised control over the character and quality of the associated goods. The party challenging the registration argued that the evidence did not sufficiently establish that the owner exercised control over the character and quality of the goods. The Board dismissed that argument, citing the Federal Court’s decision in Empresa Cubana Del Tabaco Trading v. Shapiro Cohen, which held that owners “can clearly swear to the fact that they exert the requisite control”. The Board concluded that the use by the licensed subsidiary enured to the benefit of the owner and the registration was maintained.

Those who have applied for, or are looking to apply for, industrial design protection in Canada should be aware that the Canadian Intellectual Property Office (CIPO) has updated its Industrial Design Office Practice Manual (IDOP) for clarity and to better reflect current office practice. The IDOP is the main source of information on how to prosecute an industrial design application and therefore these updates should serve to make the prosecution process clearer and smoother for applicants and their agents.

In particular, the IDOP has been updated to re-organize the section about “Communications with the Industrial Design Office” and to clarify or revise sections related to the appointment of agents, third-party correspondence, designs applied to sets, withdrawal requests for Hague applications, and corrections of Hague registrations.

The updated IDOP was published on 19 June 2025 and can be found here. A detailed summary of the updates can be found here.

Patentees and licensors should enforce their patent rights as quickly as they can to avoid possible issues of conflicting limitation periods. This is an update to our post of 28 February 2025.

In 2016, JL Energy Transportation Inc. (“JL”) commenced an action in Alberta against Alliance Pipeline and Aux Sable alleging that the Defendants had breached the licenses they entered into with JL and had infringed patents held by JL.

The Defendants succeeded in obtaining  summary dismissal of the claim in 2024 on the basis that the general two-year limitation period under the Alberta Limitations Act had expired. In 2025, JL was successful in overturning the summary judgment decision by arguing that the applicable limitation period should instead be the six-year limitation period set out in section 55.01 of the Patent Act, and not the two-year limitation period in the provincial Limitations Act. The Defendants have now sought leave to appeal to the Supreme Court of Canada.

Given the potentially uncertain and evolving legal landscape around applicable limitation periods for patent infringement actions, litigants should strive to commence legal action quickly to avoid complications with conflicting limitation periods, which may be costly and time-consuming to deal with.

Inventors, patent applicants, and patent assignees should carefully consider who the actual inventors of their patents are, or they may risk losing their patent rights altogether.

In 2023, the Federal Court found that the inventor listed on Canadian Patent No. 2,624,834 (the ‘834 Patent) had likely learned the ideas behind the inventive concept of the patent from one of his subordinates while working at Genesis International Oilfield Services Inc. After learning of the inventive concept, that “inventor”, John Ewanek, moved to a new company, which filed the ‘834 Patent with Ewanek listed as the sole inventor. The ‘834 Patent was later purchased by Canadian Energy Services L.P.

The Federal Court declared that Ewanek’s subordinate at Genesis was the actual inventor of the ‘834 Patent and that the successor company to Genesis was therefore the actual owner of the ‘834 patent.

Key evidence at the trial were the logbooks and records kept by the subordinate, which substantiated the fact that he was the actual inventor.

Canadian Energy Services unsuccessfully appealed the Federal Court decision to the Federal Court of Appeal, and has now sought leave to appeal to the Supreme Court of Canada. Litigating inventorship questions before the courts can be costly, which could have been avoided by carefully considering inventorship from the outset of filing or by conducting due diligence reviews of inventorship when purchasing a patent.