The Gowling WLG Best Blog in IP Law and Technology Prize (the “Gowling WLG IPilogue Prize”) was pioneered in Professor Pina D’Agostino’s Intellectual Property class in the Fall 2007 term and has been generously sponsored each year since then by Gowling WLG.

All blog entries and comments on the IPilogue submitted by Osgoode students are considered automatically for the prize. In each academic semester, there is one prize for the best blog post and one prize for the best comment.

For students, this is a chance to recognize their research and writing in a specialized and technical field. It also encourages law students with a strong interest in Intellectual Property Law to develop that interest. Of course, the subject matter of the IPilogue goes beyond strictly IP. Our stories also delve into related areas including: internet law, privacy rights, broadcasting, social media and free speech.

We are pleased to announce this year’s winners of the Gowling WLG IPilogue Prizes:

Fall 2018 Term:

Best Blog: Peter Werhun on “”

Best Blog Comment: We did not award a winner for this category

Winter 2019 Term:

Best Blog Post – We have a tie:

Gillian Burrell on “”

Saba Samanian on “”

Best Blog Comment: Alessia Monastero’s comment on “”

Congratulations to our winners and thank you to all who make the IPilogue possible. We are most grateful to Gowling WLG for their generous support.

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The Plaintiffs are the artist Amel Chamndy and Galerie NuEdge Fine Arts, which showcases her works. They are claiming $40,000 in damages for copyright and trademark infringement arising from Basanta’s project.

The project, which Basanta describes as an “art factory”, generates images randomly, without human input. Two computer scanners lay on their sides, endlessly scanning each other, and the images are influenced by the lighting conditions in the room as well as a computer mouse that is programmed to randomly change the scanners’ settings. Each image is analyzed using a deep-learning algorithm that was trained on a database of contemporary artworks. When the algorithm identifies a match of 83% or higher, the scanned image is automatically uploaded to Basanta’s and page and named after the lookalike artwork, the percent similarity, and the artist’s name.

Chamandy’s claims that Basanta’s image “85.81%_match: Amel Chamandy ‘Your World Without Paper’, 2009” violates her copyrights in a photographic work as well as the trademark on her name, .

Copyright Infringement

Chamandy claims that although her photograph was not republished by Basanta, an unauthorized copy of her work was necessarily made in the process of selecting scanned images for publication on Basanta’s website.

It’s hard to predict whether the “art factory” will be exempt from copyright infringement under the fair dealing provision because the analysis is highly contextual. provides a closed list of purposes and a non-exhaustive list of six fairness factors. Basanta’s use may qualify as research because the computer-generated works are not sold, and Chamandy’s photograph was used temporarily by a computer but never published. Chamandy may argue that Basanta has a commercial purpose or that his website has lessened demand for her photograph.

Teresa Scassa, a professor of law at the University of Ottawa, points out in her that the outcome of a fair dealing argument is all the more uncertain because the courts have not taken a clear position on data mining.

In data mining, deep-leaning algorithms are trained to recognize patterns in large datasets, and since the tool is becoming prevalent in nearly every industry, it raises questions about the copyright attached to the training data. Chamandy’s photograph may not have been part of Basanta’s training data, but the issues are similar. Does each of the thousands of artists whose art was used by the computer have a claim against Basanta? At the moment, Canada is trying to decide how data-mining will fit into our current regulatory scheme and whether any is required to accommodate it. On one hand, we should protect the interest of rightsholders, but on the other, we cannot discourage the development of artificial intelligence in Canada. A machine-learning algorithm is only as good as the data that it was trained on, so the industry cannot flourish without clear guidelines and reasonable access to data.

Trademark Infringement

Whatever the outcome of Chamandy’s copyright case, she is not likely to succeed in establishing trademark infringement.

Because Basanta’s use of Chamandy’s name is neither as a trademark, nor is it confusing to the consumer, the case hinges on section 22 infringement: depreciation of goodwill. Following the Clairol precedent, a plaintiff seeking to claim section 22 damages does not need to prove the defendant used the mark as a trademark for the purpose of distinguishing wares or services, merely that wares or services were distributed in association with a registered trademark.[1]

Although the title of work could associate goods or services with Chamandy’s trademark, there are no goods or services in this case. In , striking union workers were permitted to use the “Michelin man” logo in promotional materials because, although they were recruiting members and collecting membership fees, the workers were not distributing wares or services for sale. Similarly, Basanta does not offer any of his computer-generated images for sale, nor does it appear that he is receiving any advertising revenue from his website. Chamandy will have the impossible task of proving that Basanta’s use of her trademarked name to bolster his own reputation constitutes advertisement in association with a service.

Written by Gillian Burrell.  Gillian  is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

[1] Clairol International Corp. v. Thomas Supply & Equipment Co., [1968] 2 Ex.C.R. 552

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Enabling women entrepreneurs to better leverage their IP was the focus of IP Osgoode's  at Osgoode Hall Law School on 11 February 2019. The symposium brought together IP experts and accomplished entrepreneurs for a full day of panels, break-out sessions, and networking opportunities. The inspiring event was the brainchild of IP Osgoode's founder & director, Professor Pina D’Agostino, and the team at Canadian Intellectual Property Office (CIPO) led by Darlene Carreau, Director General of the Business Services Branch at the CIPO.  The symposium continues the organizations’ efforts to encourage innovation and entrepreneurship across Canada.

Keynote Address and Panel Discussion

, cofounder of & , discussed challenges she overcame as a young female entrepreneur. She highlighted the benefits she experienced from having a male business partner whom she trusts and who advocates for her. Through discussions with the attendees, Rawlley advised that finding a trustworthy partner requires following your gut and looking for a personality that complements your own. In addition to having an advocate, it is essential to be confident in business interactions. You can develop confidence from self-learning and equipping yourself with new technical skills. Rawlley also balances confidence with vulnerability. She suggested that vulnerability through sharing negative experiences when networking with others is important to make meaningful connections and learn from colleagues in the industry.

During the panel discussion, Darlene Carreau discussed the issues with low IP awareness and use among Canadian enterprises. IP is essential to businesses as they grow and scale. , Senior Fellow, Centre for International Governance Innovation (CIGI) and former Chief Legal Officer for Research in Motion Ltd. (RIM), contextualized the conversation by adding that even after paying registration fees, maintaining IP can be a significant cost. For example, having IP registrations can make companies a target for .

Jacqueline (Jackie Cooper), former Chief Revenue Officer at Muse, discussed how these business challenges present opportunities to find new ways to leverage IP rights. Jessica Rawlley added that IP has to be seen as an investment and not as a cost. Thinking about IP in early business stages is not typically a priority and it tends to be pushed down on a company’s list of things to do. Through her discussion questions, Professor D’Agostino highlighted issues such as the lack of innovation that aims to address women’s needs. Considering women’s perspectives in the science, technology, engineering, and mathematics (STEM) fields is a step toward this goal. One example of how women entrepreneurs have changed the way innovation addresses women’s issues is , which uses a fiber found in bullet proof vests and climbing materials to create indestructible pantyhose.

Important Conversations

The event was an incredibly unique opportunity for women entrepreneurs to obtain advice from a female perspective, instead of receiving business advice that is blind to their realities. Those that attended the event had the rare chance to receive guidance from IP professionals in circumstances that were safe and welcoming for women.

In the afternoon breakout sessions, participants were able to have direct conversations with IP experts and receive immediate feedback, without any interruptions or condescension. As we heard throughout the day, these are issues that continue to beguile women in business, especially in the technology industry. In particular, , the Waterloo Region IP Advisor at the CIPO, spoke about her experiences advising male Chief Technology Officers (CTOs) who think they know everything about IP, and the keynote, Jessica Rawlley, reflected on the times when business connections would ignore her until her male business partner repeated the same thought. This is a sad reality which hinders progress for professional women, but at the symposium participants were actually respected and heard.

The Women Entrepreneurship Symposium provided a wealth of information for women business owners. It provided resources, information, and networking opportunities for women who are accomplishing incredible things and stimulating the Canadian economy through business. But perhaps the most important takeaway was the hope and inspiration that will undoubtedly give participants the confidence they need to succeed.

Meeting so many formidable women who had started or were planning to start businesses was immensely encouraging. At the start of the day, Interim Osgoode Hall Law School Dean Mary Condon had expressed her hope that we would all leave with more “inspiration and enthusiasm” than when we arrived. And she got her wish.

Written by Gillian Burrell and Summer Lewis. Gillian Burrell is a JD candidate at Osgoode Hall Law School. Summer Lewis is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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While at Sandoz, I primarily worked with the IP team on patent litigation, although I also participated in some trademark prosecution. Having previously conducted research in molecular biology and worked in science journalism, I had a keen interest in the pharmaceutical industry, and I was eager to engage in technical writing about drugs and patent law. I was given a wide range of tasks including drafting legal memoranda on various legal questions, reviewing licensing agreements and settlement terms, and summarizing litigation strategies for internal review.

What surprised me most about the pharmaceutical industry is how heavily it is shaped by regulatory schemes rather than the Patent Act, which I had previously studied at Osgoode. While my work at Sandoz often involved issues of validity and non-infringement, I generally felt that I was more occupied by the timelines and outcomes dictated by the Patented Medicines (Notice of Compliance) Regulations (PM(NOC) Regulations) and the Rules of Civil Procedure. Validity and infringement are just a few of the factors that counsel consider when choosing a litigation strategy. Information that is sometimes more important is the predicted launch dates for Sandoz and its competitors, which depend largely on the duration of PM(NOC) litigation.

My experience at Sandoz has led me to understand that the role of in-house counsel is largely unsung. The large, downtown law firms are heavily represented in law schools through networking events and career panels, and professors frequently compare course materials to future work that they expect we will be doing in a law firm. When I first arrived at Sandoz, I had a limited understanding of the work done by corporate legal departments, but I have come to realize that law firms are workhorses while the in-house lawyers run the game. In-house counsel choose the litigation strategy, they choose whether or not to accept advice from external counsel, and they demand quality work from law firms.

While law firms can provide valuable expertise in litigation, they do not generally understand the business needs of their clients (in-house counsel). While Sandoz has a few preferred firms that understand their needs, the legal team also spoke about frustrating experiences with law firms. External counsel tend to advise aggressive litigation strategies that do not align with a client’s business goals, or they will produce a lengthy memo for a legal question that could have been answered with a short email. Although an increasing number of law firms are offering alternative fee arrangements (AFAs), which are preferred by clients over billable hours, companies tend to be dissatisfied with the value provided by law firms.

Being mindful of business operations is something with which in-house counsel struggle as well. A legal department is the client of a law firm, but the department also has clients themselves: the executives at their company. At an off-campus training day in October, I had attended a session about the modern role of in-house counsel presented by Nadia Petrolito, Vice President, General Counsel and Chief Communications Officer at L’Oréal Canada Inc. In the commercial world, lawyers have the reputation of slowing down projects and creating barriers, so Nadia strives to prioritize business considerations and communicate legal issues. Her department publishes an internal monthly newsletter about legal issues that is not only easy to read, it is actually highly anticipated by the other departments. Nadia’s approach to competitors is also modern and financially efficient. She emphasizes the use of “courtesy” letters or phone calls rather than “cease and desist” letters because an amicable approach is likely to achieve positive results without incurring costly litigation fees or damaging the company’s reputation.

I am grateful to IP Osgoode and Sandoz Canada for giving me this rare opportunity to experience pharmaceutical litigation from the frontlines. For those readers who are 2L students considering the IP Intensive, I cannot recommend this program enough. If you are passionate about IP or technology law, be sure to submit an application by the January 25^th deadline.

Written by Gillian Burrell.  Gillian is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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