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Bulletin | Covid-19

Protecting Your Intellectual Property Rights During These Challenging Times

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Intellectual Property Bulletin

Given the current public health emergency, the provincial and federal courts have reduced their activities to the strict minimum and are operating on a virtual basis as much as possible.

Unfortunately, situations like this often lead to an increase in fraudulent activities. Certain individuals take advantage of the situation to appropriate, infringe or violate the rights of others. In such a context, you may feel powerless if your intellectual property rights are infringed.

If your business is the victim of such a violation and you want to take action to make it stop, there are resources available to you.

Indeed, lawyers are for the most part still working and available to help you with regard to intellectual property licences, demand letters or other extrajudicial measures.

The Federal Court is still in operation, despite having limited its activities. Parties can files proceedings and other documents electronically, and are exempted from filing paper copies. The Court will continue to hear urgent and exceptional matters by way of telephone conference (see Practice Direction of March 17).

The Superior Court of Quebec will also hear matters that are considered urgent. While intellectual property is of federal jurisdiction and proceedings in this area are primarily commenced in Federal Court, the provincial courts also have jurisdiction and can be an advantageous forum to put an expeditious stop to the infringement.

In fact, unlike common law jurisdictions that favour performance by equivalence − and thus the award of damages − Quebec courts, under civil law, are much more willing to allow a creditor to demand specific performance of the obligation by the debtor, such as by way of an interlocutory injunction order.

Interlocutory injunctions are listed as urgent judicial activities maintained by the Quebec Ministry of Justice (see Justice Québec website). It is therefore possible to commence such proceedings despite the public health state of emergency and the resulting limited judicial activities.

In the event that your business is the victim of a violation of its intellectual property rights, but you are unable or do not want to take action, you still retain some of your rights: at the provincial level, limitation periods for commencing proceedings have been suspended (see Ministerial Order 2020-4251 and Press Release of March 15).  At the federal level, filing deadlines may continue to apply depending on the statute that provides for the deadline to commence the action. That being said, parties will be able to request an extension of time if they are unable to meet the filing deadlines in light of current circumstances (see Practice Direction of March 17, Practice Direction of April 4 (Federal Court) and Practice Direction of April 2 (Federal Court of Appeal)).

The current situation has brought about much worry and uncertainty in many respects. It is also important to be as prepared as possible for the resumption of operations, and to try to place your business in the best possible position for the hoped-for upturn. Note that if it becomes an issue for you, resources are available to help you protect and enforce your rights.

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