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Inside Internal Controls

News and discussion on implementing risk management

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Intellectual Property, IP

What do audit committees think about risk and audit?

I am encouraged by the latest KPMG report, their 2017 Global Audit Committee Pulse Survey. I am encouraged because KPMG appears to be asking the right questions and getting intelligent answers.

 

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Searches of electronic devices at the Canada/US border

The possibility of arbitrary searches of the electronic devices of persons crossing into the US continues to raise concerns among Canadians and, in particular, privacy regulators. Recent statements (and subsequent legislative amendments) are attempting to address some of the legal issues.

 

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The global reach of Canadian privacy law: Federal court issues landmark ruling in Globe24h

With the global reach of the internet and ease with which information may now be disseminated, this decision therefore may provide corporations and individuals with an effective avenue to pursue foreign-based entities and enforce their rights with respect to disputes involving illegal, defamatory or malicious online activity originating abroad.

 

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The future of risk management

The Institute of Risk Management has a great feature where they have asked people around the world, including a number of luminaries, about the future of risk management.

 

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Why get an injunction anywhere else? Federal Court grants interlocutory injunction based on damage to goodwill and practical impossibility of calculating lost sales

This case and its discussion of the difficulty associated with the apportionment of lost sales may provide a path to an interlocutory injunction in cases with similar difficulties.

 

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Can marketing and compliance share a playbook?

I recently read an article in the Winter 2017 MIT Sloan Management Review, Mastering the Market Intelligence Challenge (Chari, Luce & Thukral). In this work, the authors address how “many multinationals simply import their domestic models into emerging markets.” And whilst this work is directed towards those who deal with market intelligence in emerging markets, the conclusions drawn are equally applicable to those who face compliance challenges in such frontier regions.

 

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Canada begins NAFTA consultations

These NAFTA consultations offer a significant opportunity for companies to have input on the primary drivers of their access to Canadian, US and Mexican markets. With the EU-Canada CETA coming into force in the coming months, Canada will be in the unique position of having preferential trading and investment relationships with the world’s two largest economies.

 

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Canada’s proposed new trademarks regulations

The Canadian Intellectual Property Office has released a first draft of the Regulations that will support our new Trademarks Act now scheduled to come into force in early 2019. The consultation period for these new Regulations will expire July 21, 2017 and will be followed by a further consultation term in late 2017 or early 2018.

 

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Federal Court of Appeal provides much-needed clarity on the “obvious to try” test and meaning of “inventive concept”

The Federal Court of Appeal has now provided much-needed clarity and guidance on two critical points in Canadian patent law: the meaning of “inventive concept” and the use of the “obvious to try” test in the obviousness analysis.

 

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Ontario court decides ground-breaking online copyright case

Trader Corp v CarGurus Inc, a recent Ontario Superior Court decision, breaks a staggering amount of new ground in Canadian copyright law.

 

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Availability of non-infringing product is relevant in determining profit recovery for infringing activities

In a recent decision, the Federal Court of Appeal determined that the Federal Court erred in law by rejecting the relevance at law of any available non-infringing product and failed to adequately consider the evidence adduced as to the ability and willingness of three suppliers to provide non-infringing product.

 

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Protecting trade secrets using non-disclosure agreements

In Canada, the issue of whether an NDA may be an unenforceable restraint of trade has been explored in the employment law context, however, there has been very little discussion as to whether an NDA could be considered a restraint of trade in transactions between two or more businesses. There has also been little discussion in Canada as to the distinction between trade secrets and ordinary confidential information. As such, US case law may provide some guidance.

 

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What’s in a slogan? Federal Court issues interlocutory injunction in trademark infringement case

The Federal Court granted an interlocutory injunction restraining Sears from using the slogan “There is no reason to buy a mattress anywhere else”. Sleep Country owns two Canadian trademark registrations for the slogan “Why buy a mattress anywhere else?”. The slogan, and its accompanying musical jingle, have been used by Sleep Country in television, print, radio, and online advertising and promotional campaigns since 1994.

 

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Where does a cause of action for patent infringement arise?

In Apotex Inc. v Astrazeneca Canada Inc., 2017 FCA 9, the Court of Appeal had to interpret section 39 of the Federal Courts Act in order to determine the appropriate limitation period for those patents that issued before a six–year limitation period was established by section 55.01 of the Patent Act in 1993.

 

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Significant changes to the Canadian patent system

Changes are coming swiftly, as the federal government moves to implement the Comprehensive Economic and Trade Agreement just days after it was signed by Prime Minister Trudeau in Brussels at the end of October 2016. These changes will significantly impact biologic/pharma patents in two major ways.

 

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