tag:blogger.com,1999:blog-5764290.post1106735369940048241..comments2024-03-22T08:01:16.236-04:00Comments on Rebecca Tushnet's 43(B)log: WIPIP 2019, Trademark panelUnknownnoreply@blogger.comBlogger1125tag:blogger.com,1999:blog-5764290.post-1049004115160043262019-02-12T17:43:04.862-05:002019-02-12T17:43:04.862-05:00Thanks for posting, Rebecca. In an effort to bette...Thanks for posting, Rebecca. In an effort to better answer Glynn Lunney’s question :) ...I expect that even unitedsucks.com would have been caught in the web of Justice Phelan’s logic here, if not for confusion or passing off then still for depreciation. To be clear, it shouldn't be caught: depreciation liability requires a technical use of the trademark in association with services, which has long been understood to require a commercial element. In this respect, the Cooperstock ruling is a departure from precedent and may ultimately (hopefully) turn out to be just one aberrant decision. <br />On the other hand, the property-based view of the trademark owner’s rights and the accompanying disregard for the speech interests of the defendant are not anomalous in Canadian case law. The shift in Canada towards a concern with the public interest and users’ rights in the copyright context has yet to be fully matched in the trademarks realm (and Cooperstock is also a major step backwards for copyright jurisprudence in this regard). Unless overturned, then, this case will undoubtedly have a chilling effect on complaints websites and other critical and parodic uses of protected marks. <br />It's also worth mentioning that trademark litigation is less frequent in Canada, and is always a risky proposition. We have very few parody cases in particular (the Source-Perrier case was 1983 and Michelin in 1996), so Federal Court rulings can stick around for many years as relevant precedents. <br />All of this is to say, in answer to Lunney: it’s pretty bad! That's why imo it's vital that the decision is overturned on appeal. (And, even if it is, it should be remembered in Canada and beyond as a striking example of the risk that the over-protection of trademark owners--and the almost absolutist approach to trademark rights--can pose to the expressive freedoms of consumers and citizens...)Carys Craighttps://www.osgoode.yorku.ca/faculty-and-staff/craig-carys-j/noreply@blogger.com