Mariela Gutierrez Olivares is a 3L JD Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.

Controversy ensued when a Mexican food restaurant in the UK, �ղ���ܱ��í��, issued a  to a similar restaurant, Sonora �ղ���ܱ��í��, for infringement of their registered mark "Taqueria." Yet is Spanish for a place where tacos are sold. Trademarking is akin to trademarking "pizzeria" or "café."

Across social media platforms, what they perceived as an act of ������ (owned by �ղ���ܱ��í�� Worldwide "TW"). A group called MexiBrit even launched which has collected over 100,000 signatures to date, hailing, "The Mexican UK community is outraged and we won't stop until we see justice. Stop the cultural appropriation!" However, Sonora �ղ���ܱ��í�� is not the first business TW's trademark is enforced against. In 2020, TW of their mark and successfully opposed a competitor’s mark, "Taco Ria" claiming it was "visually similar and phonetically and conceptually identical" and would confuse consumers.

Conflicts surrounding marks that many consider generic, descriptive or worse culturally appropriating (or misappropriating) are . The recent �ٲ���ܱ��í�� highlights the following issues in the global trademarks (and IP) regime:

1. The role of trademark examiners interpreting the statutes that grant trademark rights is increasingly challenging in a global economy. In cases like the one here, trademark examiners and officers consider the average consumer's knowledge in the jurisdiction they are acting. Here, a trademark examiner would examine the understanding of the UK public when reviewing the "Taqueria" mark. Presumably, when it was granted in 2004, the mark was not considered generic or descriptive.
2. The use of generic and descriptive marks will inevitably cause harm. Owners who invest resources to build a reputation suffer when they have to discontinue use of a mark. Inversely, non-owner users who become excluded from using a term where no other exists also suffer. Here, TW could choose to surrender its mark, but not without facing a considerable financial setback – forfeiting the investment made to build its name and re-distinguishing its business under a new name. Sonora �ղ���ܱ��í�� and others who wish to defend their use of the mark must also spend their resources and potentially face more significant losses if those actions fail.
3. Protecting traditional and cultural heritage requires adequate legal tools. Whether "Taqueria" ought to remain a generic term available for anyone to use in their business name is a legal question. Though various have called for the , legal tools to determine how such protection is to be accomplished are lacking. Despite the moral reprehension associated with , legally-binding solutions are few and far between, left to each jurisdiction.

Trademarks indicate the source of a product or service. Where intellectual property rights (including trademarks) exist, accusations of cultural appropriation are insufficient to cancel or invalidate those rights. All things considered, more �ٲ���ܱ��í��s means more tacos and that is a great problem for the UK and the world to solve.

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Mariela Gutierrez Olivares is an IP Innovation Clinic Fellow and a 3L JD Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.

The parts of my law school journey I have most enjoyed have been the opportunities for hands-on learning such as Osgoode’s IP Innovation Clinic and mooting experiences. The IP and Technology Intensive stood out to me as a unique opportunity for additional hands-on learning. I am pleased to share that my placement at Indigenous Services Canada (ISC) was a valuable learning opportunity which has made a lasting impact on my career trajectory.

Truthfully before I learned I would be completing my placement at ISC I did not know much about the organization. However, I was immediately intrigued upon learning about ISC’s mission:

Indigenous Services Canada (ISC) works collaboratively with partners to improve access to high quality services for First Nations, Inuit and Métis. Our vision is to support and empower Indigenous peoples to independently deliver services and address the socio-economic conditions in their communities.

I was excited to see what the ISC’s work is like, given their distinct and obsolete mission. This extraordinary mandate resonated deeply with me and my interest in social justice, however it was not immediately obvious that type of work I might expect to do or witness at ISC.

My placement was on the Innovation Team, under the Partnerships and Innovation Directorate in the Evaluation and Policy Redesign Branch. The , mandates ISC to take an innovative approach to policies and programs with aim of implementing a gradual transfer of services to Indigenous organizations. To this effect, the Partnerships and Innovation Directorate oversees a variety of different projects, including a strategic partnership fund, a results-based innovation network, international collaboration arrangements, efforts to eliminate anti-Indigenous racism, and a variety of other projects with specific Indigenous communities.

While my internship experience was virtual, team members from different regions throughout Canada made me feel welcome. I was invited to join team meetings where I was able to become well acquainted with the team’s ongoing projects. In addition, I was also invited to meet with ISC staff outside of the Directorate, staff in other government departments, and partners at Indigenous organizations. I also received plenty of support as I carried out research on data governance and intellectual property. Though I started my placement with little knowledge about ISC and the services they deliver, I was able to gain a broad understanding of the various projects the team is engaged in and found myself learning a great deal about the complexities of government work in particular as it relates to the delivery of services for Indigenous communities. Although I completed my placement remotely, I felt like a valued member of the team. Everyone at ISC was very generous with their time and willing to help me.

My placement gave me an opportunity to gain exposure to a unique government work setting and a direct look at how policy is enacted to advance department goals. Much of my law school courses have been focused on the theoretical underpinnings of law and how it is developed and interpreted in the courts. Though policy considerations are certainly present in the legal curriculum, we rarely consider what happens to policies as they are enacted and refined over time. This is precisely what I had a chance to witness at ISC. As Canada strives to advance reconciliation with Indigenous communities, departments like ISC have the tall order to delivery critical services and build (or re-build) relationships with Indigenous Peoples in Canada with a view toward transfer of services.

I had an amazing time during my placement with the Innovation Team at Indigenous Services Canada. I was deeply impacted by my experience, as witnessing the dedication of the team and their commitment to the department mission inspired me to consider a career in public service. I firmly believe my work as an intern has helped me strengthen my research, writing, and advocacy skills. My time in the IP and Technology Intensive has enriched my law school journey in a way that I did not imagine possible, and I am deeply grateful for that.

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Mariela Gutierrez Olivares is an IP Innovation Clinic Fellow and a 2L JD Candidate at Osgoode Hall Law School. This blog was prepared as a requirement for the Directed Reading: IP Innovation Program course, taught by Prof. Pina D’Agostino.

Artificial Intelligence (AI) technologies prevail all around us. Lawmakers are playing catch up by addressing what non-human authorship means for intellectual property as we know it.

Current AI and machine learning uses range from the  to the  for people with disabilities. More controversial areas of AI include its use in �����Ի���.

Causing just as much controversy is whether AI can be an author. Can AI produce original works? If so, should those works be protected by copyright? And who would own that copyright? 

Response from Copyright-granting bodies

These are questions that the Canadian Intellectual Property Office (CIPO) has been grappling with along with its counterparts in other jurisdictions (as others have previously written on and ). CIPO has reached a conclusion after they  to a piece of art  (along with a human co-author).

By comparison, the US Copyright Office Review Board has  that obtaining copyright protection , citing that copyright law only protects those works that “are founded in the creative powers of the mind.”

In the EU, a 2009  established a test that describes originality as requiring an “author’s own intellectual creation.” Though the EU Court of Justice has not yet had a test case to define authorship further, there is a strong indicator in  of the need for a physical person. 

The Growing Powers of AI

Despite the mixed reactions from the governing bodies that have the power to issue or deny copyright protection to AI-authored works, the fact is that AI tools that can generate original works have arrived. AI tools that  (one has even ),�� works (including news articles), and  already exist. Countless more AI creations may be underway. 

The Legal Conundrum

The legal debate of who or what gets to be an author () will continue. Copyright law has been around since the 18th century, and the evolution of technology has allowed humans to reach new heights of creativity for mass consumption.

Much of the debate centers on the notion that only works born from a human mind (where computers and software were used merely as tools) are worthy of copyright protection. Yet, proponents of AI authorship have drawn an analogy between the novelty of non-human authors and the once novel notion of corporate personhood.  have suggested the introduction of an  to protect “authorless” AI-generated works.

Even if, eventually, AI-generated works are protected by copyright, uncertainty remains as to . Traditionally, the first owner of a copyright is the author, and other entities may be secondary owners (i.e., an author’s employer or publisher). For now, at least in Canada, ownership will be assigned to the person who arranged to create the work and not the AI that created the work itself.

Implications for Businesses Leading the Way for AI-generated Creations

What does the current ambivalent landscape mean for those looking to protect works authored by AI? The debate is far from over, and we will undoubtedly continue to see jurisprudence about AI-generated works. Businesses that have developed AI tools capable of generating original works with a view to monetizing these creations are in legal limbo.

For now, it seems developers of AI tools have two options. The first and arguably safer route is to designate the person overseeing the AI technology as author or co-author of its creation. This could help more rapidly monetize AI-Generated works, as courts determine whether AI-generated work can be copyright-protected and how ownership will be assigned. The second and riskier option is to continue innovating and help spearhead the evolution of the law or else hold closely their potentially copyrightable assets. Should AI creations be deemed eligible for copyright protection in the future, those who have already developed AI technologies may be positioned to exploit intellectual assets early on. 

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