Trade secrets versus internet freedom

Today the Supreme Court of Canada opens a civil hearing that pits Equustek Solutions Inc., of Burnaby, BC, against Internet giant Google. Here’s the Supreme Court summary:

Under what circumstances may a court order a search engine to block search results, having regard to the interest in access to information and freedom of expression, and what limits (either geographic or temporal) must be imposed on those orders? — Do Canadian courts have the authority to block search results outside of Canada’s borders? — Under what circumstances, if any, is a litigant entitled to an interlocutory injunction against a non-party that is not alleged to have done anything wrong?

The plaintiffs sued their former distributors for unlawful appropriation of trade secrets, alleging that the distributors designed and sold counterfeit versions of their products. The plaintiffs obtained injunctions against the distributors, prohibiting them from carrying on any business online. When this proved ineffective, the plaintiffs sought a court order against Google, to prohibit it from displaying search results that included the distributors’ websites.

The Supreme Court of British Columbia granted a worldwide injunction against Google, finding that it had territorial competence over Google and that it possessed an inherent jurisdiction to maintain the rule of law and protect its processes, which in appropriate circumstances may include an injunction against non-parties. In this case, the balance of convenience favoured granting an injunction. The Court of Appeal agreed that the court held jurisdiction over Google with respect to the injunction application. It also concluded that it was permissible to seek interim relief against a non-party. The power to grant injunctions is presumptively unlimited, and injunctions aimed at maintaining order need not be directed solely at the parties involved in litigation. In this case, an injunction with worldwide effect was justified.1

Equustek designs and manufactures flexible communication interfaces mainly for the industrial automation industry. Products include gateways, bridges, and integration services. After a distribution agreement with American company Datalink Technologies foundered in the early 2000s things got messy, and confusing. However, around 2006 Datalink began selling a copy in substitution for one of Equustek’s products, and according to Equustek, returning defective counterfeits to Equustek for repair/replacement. (Sources: 1Supreme Court of Canada, case 36602 – Google Inc. v. Equustek Solutions Inc., et al.; Reasons for Judgment in the successful appeal in BC Supreme Court of the original Equustek vs. Jack proceeding (16 pp., 167 Kb pdf); The Toronto Star, 2016-12-06, “Google, B.C. firm duel over free speech, copyright in Supreme Court battle“; Techdirt blog)

Canada’s transport regulations for animals to be updated

This month sees two initiatives to modernize regulations for animal transport in Canada:

  1. the federal government has released for public comment (until February 15, 2017) “Health of Animals Regulations Part XII: Transportation of Animals-Regulatory Amendment – Interpretive Guidance for Regulated Parties“;
  2. the National Farm Animal Care Council (NFACC) aims to update its 2001 transportation Code of Practice in 2018, and as a first step has launched a survey “Priority Welfare Topic Areas for the Transportation Scientific Committee,” which closes Dec. 9, 2016.

The former is managed by the Canadian Food Inspection Agency (CFIA) which is empowered to enforce and administer the federal Health of Animals Act (HAA) and the Health of Animals Regulations (HAR) for the transportation of animals into, within or out of Canada. The proposed amendments apply to all modes of transport including aircraft, carriage, motor vehicle, trailer, railway car, vessel, crate, cargo container or any other conveyance or contrivance used to move animals, and apply to all aspects of animal transport starting with:

  • handling the animal(s) for the purpose of loading,
  • loading the animal(s),
  • transporting the animal(s), and
  • unloading the animal(s).

The regulations define cases that render animals unfit for transportation and cases of compromised animals which are subject to strict limits of transportation.

The CFIA Guidelines refer specifically to the NFACC Code of Practice that provide detailed advice on such topics as ramp angles, step heights and load density for different species. There is a link to the 2001 Code on the NFACC survey page cited above.

Typical method of catching broiler chickens in a darkened barn.
Typical method of catching chickens in a darkened barn. Catchers generally carry 7 or 8 birds at a time and place them altogether in a wire crate for transport to a slaughterhouse. Current Canadian recommendations for maximum cold weather chicken load densities are 139 lb/10 sq. ft., less in warm weather, with all birds able to sit on the floor at the same time. (Photo by Jo-Anne McArthur / We Animals, courtesy of The Animal Museum)

Protecting Intellectual Property

Intellectual property (IP) consists of intangible assets associated with saleable products and includes design, branding, innovation and knowledge.

The protection of IP is an increasingly vital factor in the global economy. Globally, IP applications have grown nearly 70% in ten years, to over 11 million in 2014. Canadian businesses continue to expand into international markets, making the protection of IP in those markets highly important. IP rights have also become a key component of international trade deals. International trade is a major part of Canada’s economy, with individuals and businesses from over 120 countries around the world filing for IP rights in Canada in 2015. 1

CIPO

The Canadian Intellectual Property Office (CIPO) handles the administration of trademarks, patents, copyright and industrial design. CIPO is the best starting point for national information and assistance in IP matters.

This month CIPO released “IP Canada Report 2016” (also available as a 34 pp., 2.7 MB pdf download). The report discusses trends in the use of IP, both domestically and by Canadian innovators and businesses abroad. It relies both on CIPO’s own internal data and on data from the World Intellectual Property Organization (WIPO), which collects global data.

In 2015, CIPO received applications for:

  • 36,964 patents (4% growth from 2014) and registered 22,201 patents,
  • 52,461 trademarks (3% growth) and registered 31,507 trademarks, and
  • 5,846 industrial designs (1% growth) and registered 5,728 industrial designs

Of course in the youtube age, national patents and trademarks offer limited protection. Canadian businesses must invest in IP rights in other countries in order to protect their inventions, brands, and product designs. In fact growth in Canadian IP activity abroad has outpaced domestic filings by Canadians. The obverse is that the top 5 non-resident filers represent 68% of total patent applications in Canada in 2015. The U.S. is by far the largest filer, followed by Canada (12%), Germany, Japan, France and Switzerland.

WIPO

The World Intellectual Property Organization (WIPO) is the global forum for IP services, policy, information and cooperation. It was established in 1967 as a self-funding agency of the United Nations. Headquartered in Geneva, Switzerland, it currently has 189 member states.

WIPO provides free access to its IP and technology databases:

  • PATENTSCOPE

    Search the technology contained in more than million patent documents, including international patent applications submitted under the PCT.

  • Global Brand Database

    Search brand information from multiple national and international sources, including trademarks, appellations of origin and official emblems.

  • ROMARIN

    Search detailed information, updated daily, on all international marks recorded under the Madrid system, which are currently in force or have expired within the past six months.

  • Global Design Database

    Search industrial design registrations from the Hague System plus participating national collections.

  • Hague Express

    Access details of industrial designs registered under the Hague System.

  • Lisbon Express

    Search appellations of origin registered under the Lisbon system.

  • Article 6ter

    Search for the State emblems, and names, abbreviations and other emblems of IGOs, which have been communicated for protection under Article 6ter.

  • WIPO Pearl

    A multilingual terminology database to find accurate IP and technological terms and concepts in 10 languages, validated by WIPO’s terminology experts.

  • Access to Research for Development and Innovation (ARDI)
  • Access to Specialized Patent Information (ASPI)

IP classifications and standards:

  • International classifications

    Four international classification systems facilitate and simplify IP searches. These classification systems organize a huge amount of information concerning inventions, trademarks, and industrial designs into indexed, manageable structures for easy retrieval:

    • International Patent Classification (IPC)
    • Nice Classification (for marks)
    • Vienna Classification (for figurative elements of marks)
    • Locarno Classification (for industrial design)
  • WIPO Standards: The WIPO Standards for IP offices help streamline data processing procedures for filing, examining, publishing, granting and registering patents, trademarks and industrial designs. Common standards also assist the technical exchange of IP data between offices and WIPO, and facilitate the international dissemination of and access to IP information.

Other WIPO Resources:

  • IP statistics, including reports on IP filing activity worldwide.
  • Official documents from WIPO meetings and Assemblies, as well as presentations from WIPO events.
  • WIPO publications – browse and download for free online.
  • Country profiles, including IP profiles of member states, with statistics, legal information, case studies, photos and WIPO cooperation activities.
  • Case studies – IP Advantage
  • WIPO Library of over 35,000 references to support IP research

Protecting Your Business’s IP

Safeguarding your IP assets is neither simple nor cheap. The U.S. Trade Representative (USTR) this week offers a starting point with the endorsement and release of an APEC (Asia-Pacific Economic Cooperation) document, ”
Best Practices in Trade secret Protection and Enforcement Against Misappropriation” (3pp., 47 KB pdf) The 8 “best practices” are really guiding principles for international agreement and cooperation, but may serve also as useful query points for exporters considering new markets.

The USTR also has available “Administration Strategy on Mitigating the Theft of U.S. Trade Secrets” (141pp., 6.8 MB pdf). In addition to American trade strategy it contains illustrative case examples and outlines the legal framework.

1IP Canada Report 2016

CETA: it’s on again

The vicissitudes of CETA (Canada Europe Trade Agreement) continue. As of today, Canada and the 28 EU (European Union) countries are reportedly ready to sign off on the free trade agreement and a lengthy addendum meant to address European concerns over dispute resolution.

CETA’s dispute resolution provisions, modeled after NAFTA (North American Free Trade Agreement), have been contentious from the start for some European governments and social organizations worried that the terms favour corporate business over national and local decision making. Although the most vocal protests originated in Germany, it was Belgium – a country whose “two solitudes” have created constitutional problems that make Canada’s wrangling with Québec separatism look like child’s play – that brought things to a head with a last minute refusal to sign and precipitated Chrystia Freeland’s frustrated walk-out last week.

Chrystia Freeland, Canada's Minister of International Trade‘Freeland, Canada’s International Trade Minister, hasn’t yet confirmed the details of the unpublished “joint interpretive declaration” that was negotiated as an annex to the agreement in order to clarify the dispute resolution’s application and mollify European critics.

CBC News has outlined the main points of the annex and provided a link to a leaked Belgian copy (in French) of the annex text: “What’s in the declarations that sealed the Canada-EU trade deal? Two declarations emerged on Thursday: one Canada negotiated, one is Belgium-specific”.

In the House of Commons this week Freeland took some partisan criticism from the Conservative Party, which negotiated most of CETA on the Canadian side, but her walk-out appears vindicated today. See CBC News, 2016-10-28, “‘The tactic has paid off’: Freeland’s dramatic walk out may have saved CETA. Despite criticism of minister’s ‘visible emotion,’ Canada and Europe seem near a deal“.

ICAO adopts carbon offset for airlines

On October 6, a Plenary Session of the UN aviation agency’s (ICAO – International Civil Aviation Organization) 39th Assembly agreed to recommend adoption of a final Resolution text for the new global market-based measure (GMBM) to control CO2 emissions from international aviation.

ICAO’s Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) is designed to complement airlines’ independent mitigation measures to reduce CO2 emissions. These include technical and operational improvements and advances in the production and use of sustainable alternative fuels for aviation.

Implementation of the CORSIA will begin with a pilot phase from 2021 through 2023, followed by a first phase, from 2024 through 2026. Participation in both of these early stages will be voluntary and the next phase from 2027 to 2035 would see all States on board. Some exemptions were accepted for Least Developed Countries (LDCs), Small Island Developing States (SIDS), Landlocked Developing Countries (LLDCs) and States with very low levels of international aviation activity. It’s the first global carbon offset system for a single industry.

In the draft Assembly Resolution text, the average level of CO2 emissions from international aviation covered by the scheme between 2019 and 2020 represents the basis for carbon neutral growth from 2020, against which emissions in future years are compared. In any year from 2021 when international aviation CO2 emissions covered by the scheme exceed the average baseline emissions of 2019 and 2020, this difference represents the sector’s offsetting requirements for that year.

The National Airlines Council of Canada said in a press release:

The National Airlines Council of Canada (NACC), the trade association representing Canada’s largest passenger air carriers, applauds the International Civil Aviation Organization (ICAO) for reaching an agreement
to implement a global carbon offset system and commends the Government of Canada for its role in reaching the accord.

(Sources: ICAO press release and What is CORSIA?; CBC News, 2016-10-07, “Historic agreement: Canada signs on to world’s 1st airline climate plan“)

Hanjin Shipping bankruptcy roils container market

Korea’s Hanjin Shipping, the world’s seventh-largest container shipping line collapsed into bankruptcy this week after a restructuring proposal was rejected by creditors. Korea’s largest liner company reported $4.5 billion (USD) in liabilities on its June 30, 2016 financial report and efforts to attract more capital and extend payment periods on current debt quickly fell apart.

Several Hanjin vessels have been detained at various Chinese ports and one was being held in Singapore. Korean courts dealing with the bankruptcy are expected to work out terms for an orderly discontinuation of Hanjin’s shipping business that involves regaining control of its fleet overseas and the eventual liquidation of its assets.

The company owns 59 of the 132 ships in its fleet which consists of container and bulk vessels. Among its chartered vessels are three from Vancouver’s Seaspan Corporation which were delivered in 2014 on 10-year contracts with a total value of $364 million (USD). Seaspan now has 88 ships in total and says the Hanjin contracts are not significant enough to endanger its own business.

Hanjin, a member of the Trans Pacific Stabilization Conference, calls at Vancouver and other West Coast ports. See Hanjin’s service map for an overview of its routes. The company’s demise has stranded cargo at the start of container shipping’s high season when retailers are stocking inventory for Christmas season sales. It has also led to rate increases of 50% or more on the spot market for some containers on the Asia-U.S. West Coast route. (Sources: Hanjin Shipping; Bloomberg, 2016-08-30, Korea’s Hanjin Shipping Becomes Symbol of Industry in Pain); Vancouver Sun, 2016-08-31, “Hanjin Shipping receivership affects Seaspan Corp’s charter operations“; CNBC, 2016-08-31, “More Hanjin ships seized, as freight rates surge and cargo owners fret“; CBC News, 2016-09-01, “Giant container vessel stuck in Prince Rupert, company in receivership“)

Ontario pilots HOT lanes on QEW

The province of Ontario will commence a pilot project on Sept. 15, 2016 of High Occupancy Toll lanes (HOT) wherein single drivers can buy access to HOV (High Occupancy Vehicle) lanes on 16.5 km of the QEW (Queen Elizabeth Way, aka Highway 403), in both directions, from Trafalgar Road in Oakville to Guelph Line in Burlington.

The pilot is scheduled to run for an indeterminate period of 2-4 years and sells 3-month permits for $180 ($60/mo.) The prospect of modest time savings attracted 3,500 applicants for the 500 available permits currently offered. Cost/benefit projections peg an average time savings of 10 minutes on each way of a commute, yielding an hourly price of $8.25 on reduced driving time.

Ontario HOV sign showing available HOT access Permits were assigned on a lottery basis and can be renewed twice before vehicle owners must reapply. The permit allows drivers to legally join buses, vehicles with 2+ passengers, etc. in the HOV lane.

The Province aims to introduce the HOT feature to some of its major freeways after pricing and tolling issues are refined. More permanent HOT lanes are expected to utilize electronic tolling. (Sources: Ontario Ministry of Transportation, HOT FAQs, HOT Lanes; Globe and Mail, 2016-08-27, p. A12, “How much would you pay to drive in this lane?”)

Air passengers choose their money over their life, and yours, in emergency

Yesterday’s crash landing in Dubai of an Emirates Boeing 777 was survived by all passengers and crew, although a firefighter died in the following blaze which consumed the aircraft’s cabin.

In such an emergency, airliner crews explicitly direct passengers to leave everything behind. However, many Emirates passengers ignored the order and stopped to collect carry-on luggage before exiting, endangering not only themselves but also the passengers behind them.

Most airlines aim to complete an aircraft evacuation in 90 seconds, the U.S. FAA (Federal Aviation Administration) standard. A 2000 study of 46 aircraft evacuations by the U.S. National Transportation Safety Board found that almost 50 percent of people had tried to take a bag. Not only do some stop for their luggage, others take video as shown in the Guardian’s link. (Sources: The Guardian, “Dubai crash-landing: video footage shows passengers stopping for luggage“; Bloomberg.com, 2016-08-04, “Crashing, Burning Planes Don’t Stop Passengers From Grabbing Their Luggage“)

Asia Pacific Gateway Skills Table releases logistics labour market predictions for western provinces

The Asia Pacific Gateway Skills Table’s1 Corridor Labour Market Information Project provides labour supply and demand information on 34 occupations in the air, logistics, rail, and trucking sectors for the Asia Pacific Gateway Corridor (APGC) transportation network, which extends from Manitoba to British Columbia. It provides occupational analysis at the four-digit National Occupation Classification2 (NOC) level. The forecasts were completed in conjunction with government and industry partners.

The reports and occupation snapshots are available at: www.lmionline.ca.

Read the Asia Pacific Gateway Corridor (APGC) LMI 2016-2025 Executive Summary (20 pp., 888 KB pdf).

Read the APGC LMI Background and Methodology Report (26 pp., 461 KB pdf).

1
The Asia Pacific Gateway Skills Table (Skills Table) is a non-profit, regional partnership between labour, business, and education and training institutions. Our mandate is to coordinate decision-making and action to address overall concerns regarding labour shortages and skills gaps in the Asia Pacific Gateway, and build appropriate capacity in labour resources in innovative ways.

2 The National Occupation Classification “is the nationally accepted taxonomy and organizational framework of occupations in the Canadian labour market,” and is designed to classify occupational information from statistical surveys. The NOC is structured in a four-tiered hierarchical arrangement of occupational groups with successive levels of disaggregation as follows:

  • 10 broad occupational categories – Each broad occupational category has a unique one digit code number and is composed of one or more major groups.
  • 40 major groups – Each major group has a unique two-digit code number and is composed of one or more minor groups. The first digit of this code indicates the broad occupational category to which the major group belongs.
  • 140 minor groups – Each minor group has a unique three-digit code number and is composed of one or more unit groups. The first two digits of this code indicate the major group to which the minor groups belong.
  • 500 unit groups – Each unit group has a unique four-digit code. The first three digits of this code indicate the major and minor groups to which the unit group belongs.

StatCan reviews oil transport

Today Statistics Canada (StatCan) released Canada’s shifting sands: Oil production, distribution and implications, 2005 to 2014, a short report with 8 charts. Among the highlights are:

  • Oil production in Canada increased by over 50% from 2005 to 2014 with crude bitumen and synthetic crude accounting for almost all of the growth.
  • In 2014, Canadian railways shipped over 185,000 rail cars containing fuel oils and crude petroleum; three times the number shipped in 2005.
  • Since 2005, pipeline and rail accidents have tended to reflect broader economic trends, but notable spills have clearly demonstrated some of the risks of the oil industry.
  • Largely driven by oil sands expansion, the oil and gas sector accounted for over one quarter (26%) of Canada’s 732 megatonnes of greenhouse gas (GHG) emissions in 2014.[*]

* On a national basis, transportation accounts for for 23-24% of GHG emissions and was surpassed as a source of GHGs by the oil and gas sector only in 2012, according to this report.