Ann Phibian v The Canadian Frog Association

The hypothetical scenario devised by the moot’s sponsor, , raised several novel copyright issues. The plaintiff, Phibian, licensed 50 Shades of Green to the defendant, the Canadian Frog Association (“CFA”) for promotional use. Phibian revoked her licence upon her discovery that one of CFA’s conservation programs, aptly titled "Switch and Bait", resulted in the death of frogs belonging to an over-populated species.

After complying with Phibian’s request to nullify the licence, the CFA contracted Greenback to replace Phibian's work. Using a Photoshop-like editing program, and One Giant Leap as a mutual source, Greenback generated a suspiciously similar logo for the CFA. Outraged by the similarity between her work and Greenbacks, Phibian sued for copyright and moral right infringement.

Among many novel copyright questions raised, the primary issues concerned: [1] the correct current approach to substantial similarity analyses of two works which borrow heavily from the public domain; [2] the admissibility of expert testimony and the role it should play in comparing two works; [3] the correct current approach to prove a work was copied; and, regarding moral rights, [4] the appropriate test for evaluating the potential prejudice to an author’s honour or reputation and how to apply that test.

The problem was drafted craftily and left certain key facts ambiguous (for example, there is no image of either leaping frog design found in the problem), so counsel for either side had ample wiggle room to devise and frame unique and creative arguments.

The Competition

After nearly five months’ of preparation, the Osgoode Hall Law School team attended the Moot on Friday February 19 and 20 at the Federal Court of Canada, along with eight other teams from law schools across Canada. The team was comprised of Alicja Puchta, Keton Motta-Freeman (Appellants), Jordan Fine, Ran He (Respondents), and Asad Akhtar (Researcher, both sides).

The competition opened midday Friday with a keynote speech delivered over lunch by the Honourable Mr. , former Justice of the Supreme Court of Canada (and current Distinguished Visiting Professor at Osgoode). His lecture, titled “The Value of Copyright: Applying the Principles of Technological Neutrality and Balance”, focused on the recent Supreme Court decision [SODRAC], Justice Rothstein’s final written decision before his retirement.

The SODRAC decision is contentious. The majority’s endorsement of technological neutrality in copyright has been argued as outdated and anti-technology. It was recently the subject of a recent , organized by Osgoode and the University of Toronto, where three panels dissected and debated the decision's potential impact on the , , , and all other industries, institutions and organizations who create, use, license, and manage copyright works.

Justice Rothstein discussed the reasons behind his majority opinion and the dissenting opinions by Justice Abella and Justice Karakatsanis. In particular, he focused on legislative language, statutory interpretation and the intentions of Parliament (or lack thereof) which supported his decision that the Copyright Act should not be interpreted or applied to favour or discriminate against any particular form of technology. The team discussed the lecture and SODRAC during our breaks, and while some of us were unsatisfied by the result of the decision, we were all persuaded by Justice Rothstein’s sound reasoning. His presence on the bench and contributions to matters of Canadian IP law will be missed, but we are proud and thrilled to have him join the Osgoode community.

Qualifying Rounds

The preliminary rounds shortly followed the luncheon at the Federal Court building in downtown Toronto. Each team was required to participate in three rounds. At this stage, the panels were composed of three members drawn from the judiciary and IP bar.

The Appellants kicked off the competition for Team Osgoode with submissions to Justice Victoria Chiappetta (Ontario Superior Court of Justice), Mark Biernacki (Smart & Biggar LLP) and Mario Bouchard (Former General Counsel of the Copyright Board of Canada). Despite a persistent barrage of hard hitting questions, the Appellants stood strong. Their second submission on Friday was argued in front of the panel consisting of Justice Allan Diner (Federal Court), Allyson Nowak (Norton Rose Fulbright LLP), and Trent Horne (Bennett Jones LLP). The final submissions for the Appellant Team were made on Saturday morning to Mario Bouchard, Alexandra Peterson (Torys LLP), and Michael Charles (Bereskin & Parr LLP). Having received strong praises from the Moot Bench, Keton and Alicja’s strong performances in all three rounds placed them first among Appellant teams at the close of the preliminary rounds.

The Respondent Team began their rounds on Friday with submissions to Justice Paul Perell (Ontario Superior Court of Justice), David Aitken (Aitken Klee LLP), and Sana Halwani (Gilbert’s LLP). The Respondents argued two rounds on Saturday Morning: the first was argued to a panel consisting of Justice James O’Reilly (Federal Court), Heather Watts (Deeth Williams Wall LLP), and Brian Gray (Norton Rose Fulbright LLP); the latter to Jek-Hui Sim (Chairperson, Patent Appeal Board), Stephen Selznick (Cassels Brock LLP), and Essien Udokang (Baker & McKenzie LLP). Despite their vigorous delivery of oral arguments, Jordan and Ran finished in a tight fourth place among the fierce competition of Respondent teams, and just shy of making the playoff rounds.

Semi-Final Round

The Osgoode Appellants moved on to the semi-finals, where they faced the University of Ottawa (last year’s defending champions). Their panel consisted of three judges: and Sharpe from the Ontario Court of Appeal, and Justice Gauthier from the Federal Court of Appeal. The round began with early rapid-fire questions from the judges, who peppered all four mooters throughout their submissions. With regards to the copyright issues, the judges were particularly interested in specific points of law, and whether, on the facts of the case, copyright infringement had truly been made out. The moral rights discussion was far more policy-infused: the judges asked questions at length about the appropriate test for demonstrating prejudice to an artist’s reputation. Everyone held their ground admirably, with both teams offering each other their heartfelt congratulations. The Osgoode team was ecstatic to see Justice Gauthier attend the final round to show her support (and even help offer a few last minute tips!) The team was also lucky enough to speak at length with Justice Brown later that evening at dinner, which was certainly one of the day’s highlights.

The Finals

The Osgoode Appellants made the finals and faced respondents from the University of Toronto. The two teams argued in front of a panel of five judges: Justice Suzanne Côté and Justice Rothstein of the Supreme Court of Canada, Justice David Stratas of the Federal Court of Appeal, Justice Kathryn Feldman of the Ontario Court of Appeal, and Justice Roger Hughes of the Federal Court. The judges asked tough questions, forced counsel to jump back and forth quickly between their submissions, and had them recall specific details from case law and decisions of the fictional lower courts. Neither of the teams crumbled under the pressure and the competition appeared close when the round closed.

The Gala

At the gala that evening, during a three-course meal at the stately University Club, the winners were announced. The respondents from the University of Toronto (Stefan Case and Victoria Hale) took home first place and best respondent's factum award, and the appellants from Osgoode (Alicja Puchta and Keton Motta Freeman) took home second place and best appellant's factum award. Stefan Case from the University of Toronto won best oral advocate and best mooter in a non-graduating year. Members of the awards committee described at length how impressed they were by ��������mooters that day.

The Fox Moot was an incredible experience. A lot of work went into our written and oral arguments, and we would all agree that in addition to improving our legal skills and understanding of IP legal principles, we had a lot of fun along the way. A special thanks is owed to our coaches from Cassels Brock & Blackwell LLP: Steven Kennedy, Eric Mayzel and Peter Henein. Our success is a result of their tutelage and patient willingness to endure frog puns.

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Leave it to Osgoode’s Harold G. Fox Intellectual Property Moot team to tell you the answer!

On February 20 and 21, 2015, the 7th Annual Harold G. Fox Moot carried on the tradition of promoting education in the intellectual property field and providing students with the opportunity to interact with jurists and experienced practitioners of intellectual property law. The moot is named in honour of the late Harold G. Fox, one of Canada’s leading intellectual property law scholars and advocates.

This year’s moot problem was about trademark confusion and the use of a pre-trial remedy called an Anton Piller order. In the problem’s hypothetical scenario, the Appellant, a multinational corporation called “Kangaroo, Inc.” alleged that the Respondent, “Janet Dough,” had violated its trademark rights by creating a t-shirt with the slogan “Just Moo It,” which (in Kangaroo’s view) was confusingly similar to its world-famous trademark “Just Roo It.” Although funny and deceptively simple at first sight, the problem involved several live IP issues, such as the use of parody as a defence to trademark infringement and trademark bullying, and provided enough twists to be challenging for both sides.

Six law schools participated in the moot this year: Osgoode Hall Law School, The University of Toronto, The University of Manitoba, Queens University, The University of Ottawa, and Western University. The Osgoode team was comprised of Maryam Khalid and Zorn Pink as Appellants, Brendan Monahan and Alexandra Grishanova as Respondents, and Anastassia Trifonova as Researcher.

The moot kicked off with a keynote address by the Right Honourable Lord Neuberger of Abbotsbury, President of the Supreme Court of the United Kingdom. Lord Neuberger’s remarks set the stage for the moot by focusing on the topic of trademark dilution specifically in the context of parody. Following Lord Neuberger’s speech, the teams made their way to the Federal Court for the preliminary mooting rounds. All judging panels in the preliminary rounds included one member of the judiciary and two IP practitioners.

At the conclusion of the preliminary rounds, Osgoode Respondents Alexandra Grishanova and Brendan Monahan advanced to the semi-final for a heated match against the University of Toronto. Both teams faced a formidable judging panel comprised of Justice Johanne Gauthier of the Federal Court of Appeal, Justice Robert Sharpe of the Ontario Court of Appeal, and the recently-retired Justice Stephen Goudge of the Ontario Court of Appeal. The bench was anything but cold! Both teams faced an abundance of questions before they even finished their introductions.

After what Justice Goudge called an extraordinarily difficult decision, only the teams from the University of Toronto and the University of Ottawa advanced to the finals. They faced a panel comprised of the Rt. Hon. Lord Neuberger of Abbotsbury of the UK Supreme Court, Justice Marshall Rothstein of the Supreme Court of Canada, Justice Kathryn Feldman of the Ontario Court of Appeal, Justice David Stratas of the Federal Court of Appeal, and Justice Roger Hughes of the Federal Court. The questions put to the finalists by the bench were challenging and profound. The high quality of answers given by both teams showed the tremendous amount of preparation that went into this competition.

After a dinner and reception at the University Club, the winners of the Moot were announced. University of Ottawa’s Frederick Wu and Laura MacDonald took home the Harold G. Fox Cup for the best mooting team. Frederick Wu was also awarded the Donald F. Sim award for the best oral advocate and the Dimock Stratton LLP award for the best mooter in a non-graduating year. His colleague Laura MacDonald received the second place oralist award. The University of Toronto’s Rachel Charney and Brett Hughes were awarded the second place prize and the best appellant factum award. Osgoode’s Brendan Monahan and Alexandra Grishanova took home the Gordon F. Henderson Award for the best respondent factum.

Overall, the moot was an amazing experience. The whole team had a lot of fun preparing for it and has not only learned a lot, but also became good friends in the process. A debt of gratitude is owed to our tireless researcher, Anastassia Trifonova, and our coaches from Cassels Brock & Blackwell LLP: Steven Kennedy, Eric Mayzel and Peter Henein, without whom our success would not have been possible. Special thanks also goes out to Professor D’Agostino, Professor Craig, and IP Osgoode for their support.

(From left: Brendan Monahan, Anastassia Trifonova, Alexandra Grishanova, Maryam Khalid, Paul Zorn Pink)

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Full results from the Harold G. Fox Canadian Intellectual Property Moot can be accessed .

was a crafty piece written by and his esteemed colleagues at . The problem took advantage of the recent developments that the Supreme Court of Canada’s have brought to infringement and fair dealing. Specifically, we were compelled to argue first whether the shortening of a licensed, long-lost Batman film to a song-specific clip (“Batman Style”, popularized by the fictional Korean artist “Pi”) infringed the copyright of the appellant’s sound recording. Second, if infringement was established, we turned to whether the respondent, Professor Michael Caine, could rely on the “private study” exception for fair dealing in providing the sound recording in its original context within the cinematographic work. It was a very fun problem, and I had the particularly onerous task of arguing that Caine’s usage was indeed fair dealing with the work.

The Osgoode team that I proudly represented consisted of myself (, Class of 2014) and Ryan Keller (Class of 2014) representing the respondent Michael Caine (and we had the pleasure of enduring many “Team Ryan” and “R-Squared” colloquialisms throughout the moot), David Bowden (Class of 2014) and Robert Trenker (Class of 2014) representing the appellant Thomas Hardie Music, Inc, with (Class of 2013) rounding out the team as our invaluable researcher.  We all took Legal Reform seminars with  in the fall 2012 term, and we all soon found out just how valuable Professor Vaver’s tutelage was.

Our preparation was extensive. We received the problem in mid-November, but with the time constraints that fall exams placed upon us, we did not sink our teeth into the problem until mid-December. Our fantastic coaches, , , and from provided us with timelines and support throughout the process, which was invaluable.  IP Osgoode's own served as the faculty advisor to the team.  Speaking on behalf of the entire team, we would like to offer our deepest thanks to them. We owe a great deal of our success to our coaches. After countless hours of factum prep, including many Google Doc and Skype sessions, our appellant and respondent teams submitted our respective facta for grading by the Fox Moot Committee in early January. Then began the oral preparation. We had many grinding practice sessions with constructive feedback from our coaches at Cassels (who themselves argued many of the cases that we cited at the Supreme Court – giving us unique insights regarding appellate advocacy) as well as innumerable team sessions, and we quickly found ourselves ready to moot!

The Fox IP Moot took place this past weekend (February 22-23, 2013) at the Federal Court of Canada, in downtown Toronto. Teams from five law schools across Ontario competed for the Harold G. Fox Cup: Osgoode Hall Law School, Queens University, University of Toronto, University of Windsor, and Western University. The competition began on noon Friday with the Fox IP Lecture, delivered by the Honorable , Chief Judge of the United States Court of Appeals for the Federal Circuit. Chief Judge Rader gave a highly entertaining lecture: IP Rights – Do the Remedies Fit the Infringement?, which spoke to the forces that he perceives as governing IP law. While I was disappointed that the "forces" did not pertain to a Jedi versus Imperial struggle, I was captivated by his views on the misconceptions of “patent trolls”, the strong influence of the media on IP cases, and the “culture” of using litigation as a commercial strategy. However, what stood out to me the most was his concerns about the re-entry of the non-expert jurist in the field of IP. In a personal conversation, he acknowledged that IP is becoming a more “sexy” field of law, and the Supreme Courts (most of which do not have IP experts, save for the Honourable of our own Court) are taking a greater interest in what has historically been the predominant realm of the Federal Courts. He cited the primary difference as one of approach, where the Federal Courts emphasize bright line tests and administrative standards, other Courts favour reasonableness standards. I could talk in much greater length about this riveting lecture, which also included strong encouragement for students to learn international IP law and references to , but in the interest of space, I must move on.

Shortly after the lecture (which was delivered while we enjoyed a decadent lunch at Arcadian Court), the first of two preliminary rounds started. New to this year’s competition, each appellant and respondent team would face the opposing side of every other school. This meant that we would moot twice in each of the two preliminary rounds (with the second held Saturday morning), with the aggregate score of our four preliminary moots and our factum determining which teams would move on to the playoff rounds. In the preliminary round, each panel consisted of one jurist and two IP practitioners, which made for a challenging and interesting dynamic. I must say that the that Dimock Stratton was able to attract to this event was, as always, top notch and we were truly humbled in appearing before them.

The preliminary rounds were a lot of fun, and some of the panels were incredibly challenging. I personally faced the difficult task of convincing some very “user rights” focused professionals that we should broadly interpret “private study” in the context of fair dealing. All of our team members became very passionate about our positions, and this certainly helped our persuasiveness in the Moot Court. After each round, we were given extensive feedback from the panels, which was a unique and fruitful way to develop our advocacy skills. Learning from the perspective of judges, who regularly hear appeals, and practitioners, who regularly make them, was one of the greatest benefits of this competition. Perhaps my favourite (and potentially embarrassing) piece of feedback was from the Honourable Justice Lois Roberts of the Ontario Superior Court who praised my voice, calling it “beautiful” and suggesting that I should be a singer. However, I refrained from serenading future judges. Justice Roberts also invited us all to sit in her seat at the bench, allowing us to gain her visual perspective, which made us all cognizant of the subtleties that the judiciary can pick up on.

After lunch on Saturday, the semi-finalists were announced, and we were extraordinarily lucky in that both of our teams advanced. Myself and Ryan as the respondents placed first among respondents in the preliminary rounds, while David and Robert placed second among appellants, in what were both inevitably close races. In a strange and wonderful twist of fate, this set the stage for an all-Osgoode semi-final round in front of the Honourable Justice Robert Blair of the Ontario Court of Appeal, the newly appointed Honourable Justice Michael Manson from the Federal Court, and the Honourable Konrad von Finckenstein, Q.C. a former chair of the CRTC. We both had undoubtedly our best rounds to date, bringing our best arguments forward while facing a very sophisticated and challenging bench, and had a lot of fun doing it. To faceoff against our own teammates who we have been working, commiserating, and practising with for months was exciting and a great way for the moot to come full circle.

In what was later described to me by Justice Manson as the toughest decision that he has made as a jurist yet, our incredible respondent team, David and Robert, moved on to represent Osgoode in the finals. Ryan and I could not have conceded to better opponents. In a packed courtroom full of other competitors, practitioners, friends, and academics (including IP Osgoode Director Professor Giuseppina D’Agostino), David and Robert faced the University of Toronto respondent team who had trumped the Western appellants in their semi-final round. Although the teams were anonymous to the judges at the time, this created a Subway Series that the Fox Moot had never seen before, and a proper (yet cordial) grudge match. In a panel that most experienced litigators would fear, our finalists’ submissions were received by five judges: Justice Rothstein, Chief Judge Rader, the Honourable Justice Stephen Goudge of the Ontario Court of Appeal, the Honourable Justice David Stratas of the Federal Court of Appeal, and the Honourable Justice Judith Snider of the Federal Court. Both teams were challenged early and often, with Chief Judge Rader proving to be particularly adversarial, hitting each oralist with a broad and difficult question within 30 seconds of commencing. Each of the four oralists were graceful, deferent, and rose to the occasion.

We were kept waiting for a few hours until an awards dinner at the University Club. In the end, Osgoode was triumphant with David Bowden and Robert Trenker claiming the Harold G. Fox Cup for the best mooting team. Myself (Ryan Heighton) and Ryan Keller took home the Gordon F. Henderson Award for the (which we could not have done without the hours of editing and revisions by Danny Titolo). The Donald F. Sim and Dimock Stratton LLP awards for best oral advocate and best mooter in a non-graduating year, respectively, went to Kevin Siu from the University of Toronto respondent team. Needless to say, we are incredibly proud to be members of the Osgoode community and represent the school well at such a prestigious event.

I could easily write another 2000 words to further texturize all of the exciting, nerve-wracking, and hilarious things that happened this weekend and it would not do this event justice. Perhaps the biggest thing that I will take away from this moot is the value of collaboration in law. As with many other fields of law, the intellectual property bar is incredibly collaborative, cordial, and this is evidenced by the generous and vast that the event received. Indeed, this event would not be an annual resounding success if not for this collaboration. We would like to thank all of the sponsors, the organizers, our coaches, and professors for making this possible. The event was orchestrated flawlessly, the abundance of food and drink at the receptions was remarkable, and everyone involved was incredibly accommodating and friendly. On a more personal note, I want to thank my teammates for making this a truly enjoyable and enlightening experience. I truly believe that we were as successful as we were because of our great collaboration and constant challenging of one another, and this will certainly persist as one of my most memorable law school experiences.

As a parting note, I would just like to remind all of the gentlemen reading this to heed the advice of Madam Justice Snider, and be sure to button up your jacket when you stand before the Court.

(from left) Danny Titolo, Ryan Heighton, Ryan Keller, David Bowden, and Robert Trenker comprised the award-winning 2013 Harold G. Fox Moot team for Osgoode Hall Law School.

Ryan Heighton is a JD Candidate at Osgoode Hall Law School and was a proud member of the 2013 Harold G. Fox Moot team for Osgoode Hall Law School.

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