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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�ճ������is intended to promote education in the intellectual property field and to provide students with the opportunity to interact with jurists of the Supreme, Ontario, and Federal Courts and experienced practitioners of intellectual property law. The moot is named in honour of the late��, one of Canada’s leading intellectual property scholars and advocates.

This year's moot problem focused on the "patent bargain," and in particular, two hot topics in the world of patent litigation: sufficient disclosure under s.27(3) of the Patent Act and the patentability of diagnostic methods. In the problem’s hypothetical scenario, the Appellant had patented a process for diagnosing early stage chronic kidney disease through the isolation of a particular bacteria in saliva. The Respondent had admittedly infringed the Appellant’s patent; however, they had challenged the validity of that patent on the grounds that the Appellant's document contained insufficient disclosure and that the invention claimed was a mere scientific principle (the correlation between the bacteria and the disease). The Appellant was successful at trial; however, the patent was ultimately invalidated by the fictional Intellectual Property Court of Appeal. The moot was an appeal to the Supreme Court of Intellectual Property, the highest court in the land.��This simple premise was greatly complicated by a number of carefully worded situational factors that allowed for compelling arguments to be made on behalf of either party.

(from left) Benjamin Farrow, Isabella Ssozi, Jeremy Fisher, Faye Alipour and Jason Hayward comprised the 2014 Harold G. Fox Moot team for Osgoode Hall Law School. Photo Credit: Alan Macek

Benjamin Farrow is a JD Candidate at Osgoode Hall Law School and a member of this year’s Harold G. Fox Moot team for Osgoode Hall Law School.

The post All About 'The Bargain' at the 2014 Harold G. Fox Intellectual Property Moot appeared first on IPOsgoode.

centered on remedies for patent infringement. In the problem’s hypothetical scenario, the defendant had admittedly infringed the plaintiff’s valid patent. What remained to be determined was the appropriate quantum of damages and whether a permanent injunction ought to be granted for the remainder of the patent’s life. This simple premise was greatly complicated by a number of carefully worded situational factors that allowed for compelling arguments to be made on behalf of either party.

Eight teams from across Canada participated in the competition this year: Osgoode Hall Law School, Queen’s University, the University of Alberta, the University of Ottawa, the University of Toronto, the University of Victoria, the University of Windsor and Western University.

The competition began Friday midday with the Fox IP Lecture, this year delivered by Osgoode’s own Professor David Vaver. His speech, entitled “Intellectual Property: Is it Still a ‘Bargain’?”, evaluated the common view of intellectual property rights as a bargain struck between creators and the state viz the public. As always, Professor Vaver’s message was as thought-provoking as it was eloquently delivered. In the words of thanks delivered by Justice Cronk of the Ontario Court of Appeal, it was apparent to all in what high regard the legal community – both in Canada and internationally – holds Professor Vaver.

The first of two preliminary rounds began shortly after Professor Vaver’s lecture in the Federal Court’s courtrooms in downtown Toronto. Each preliminary round had three����from both the judiciary and the intellectual property bar. After the first day of competition, we enjoyed a reception – graciously hosted by Dimock Stratton LLP – where we got the chance to socialize with the other schools’ competitors as well as various members of academia, the judiciary and private practice. It was incredibly exciting to speak to so many of the judges whose decisions we had become familiar with over the course of our research and in law school more broadly. These were the true celebrities to us law students; it was fascinating to get a sense of the judges’ personalities and listen to their perspectives on various matters of law and life.

The second preliminary round began early Saturday morning and the semi-finalists were announced shortly after lunch. Our Respondent team, comprising Kyle Rees and Alex Chang, were among the fortunate few who progressed. Following an excellent performance in the semi-finals, they went on to the final round and were only narrowly beaten by the opposing team from Western University. The panel for the final round included Justice Marshall Rothstein of the Supreme Court of Canada (IP Osgoode Advisory Board Member), Chief Justice Randall Rader of the United States Court of Appeals for the Federal Circuit, Justice Eleanore Cronk of the Ontario Court of Appeal, Justice Edgar Sexton of the Federal Court of Appeal, and Justice Roger Hughes (IP Osgoode Advisory Board Member)��of the Federal Court. To say it was an active panel would be a staggering understatement. Every mooter who stood before the panel was met with an overwhelming barrage of questions and comments, but each, to his credit, maintained his composure and offered thoughtful responses.

The were announced at the awards dinner on Saturday night at the University Club. The Harold G. Fox Cup for the best mooting team was awarded to Charles Pettypiece and Benjamin Reingold of Western University. The Donald F. Sim Award for the best oral advocate was given to Vanessa Ibe of the University of Windsor. Alex Wai and Christopher Langan of the University of Toronto earned the Gordon F. Henderson Award for the best factum. Charles Pettypiece of Western University was also awarded the Dimock Stratton LLP award for the best mooter in a non-graduating year. Following dinner and the presentation of awards, we enjoyed our second reception and had another chance to mingle with the other competitors and panellists. This experience itself was reason enough to have participated in the competition.

The team would like to offer profound thanks to the many people who made for such an engaging and successful competition. Thank you to all of the organizers, in particular co-chairs Professor Emir A.C. Mohammed from the University of Windsor and Angela Furlanetto of Dimock Stratton LLP, as well as their many assistants from both camps. Thank you to all of the many for their remarkable generosity. On a more personal note, sincerest thank you to our coaches Casey Chisick (IP Osgoode Advisory Board Member), Shane Hardy and Tim Pinos of Cassels Brock for their invaluable assistance and support in the months leading up to the competition.

(from left) Amanda Laren, Aaron Kucharczuk, Dan Whalen, Alex Chang and Kyle Reese��comprised the 2012 Harold G. Fox Moot team for Osgoode Hall Law School.

��Daniel Whalen is a JD Candidate at Osgoode Hall Law School and a member of this year's Harold G. Fox Moot team for Osgoode Hall Law School.

The post Reflections on the Harold G. Fox 2012 Canadian Intellectual Property Moot appeared first on IPOsgoode.

In addition, Osgoode's very own��Professor David Vaver��will be giving the keynote address on��Intellectual Property: Is it Still a ‘Bargain’?��Professor Vaver's lecture will be taking place at��12pm at the Sheraton Centre Toronto Hotel (123 Queen St. West, Toronto, Canada). All are welcome to attend.

Stay tuned for more Fox Moot coverage in the coming week.

The post Reminder: Harold G. Fox Intellectual Property Moot This Friday (February 17, 2012) appeared first on IPOsgoode.