Photo By Andrej Lišakov ()

Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law

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The Rise of Traditional Face Tattoos in Popular Culture��

In September 2021, Indigenous model and activist Quannah Chasinghorse wearing a gold cut-out gown by Peter Dundas and traditional Navajo turquoise jewelry. She was also recognized for her traditional Hän Gwich’in face tattoos, featured prominently on her chin and extending out from the corners of her eyes. Chasinghorse stated that the hand-poked lines, called Yidįįłtoo, . Her presence was a watershed moment for Indigenous representation at the Met Gala.

However, this moment was quickly met with disappointment after stepped out on the red carpet a month later for the world premiere of her new movie Eternals. In addition to her dress by Balmain, Jolie was adorned with a “” which has since caused some turmoil amongst Indigenous peoples. Amongst others, Inuk throat singer Tanya Tagaq was quick to note the similarities between Jolie’s chin cuff and (traditional Inuit tattoos), much like the one Chasinghorse is now known for. Tagaq noted, “”

These events point to two prevalent issues within the current legal framework: First, that current intellectual property laws do not properly acknowledge collective ownership over shared culture within Indigenous communities and second, whether tattoo designs have the potential to be protected through copyright laws.

Other Examples of Indigenous Cultural Appropriation in Canada

In 2009, the Hudson’s Bay Company (HBC) mass-produced sweaters as part of their official merchandise for the 2010 Vancouver Olympics. Much like the case of Jolie,, as the Cowichan Tribes of Vancouver Island alleged the sweater designs had been appropriated from one of their traditional designs. The Cowichan filed a lawsuit against the HBC, and that the handcrafted authentic sweaters would be sold exclusively in the downtown Vancouver First Nations Pavilion and the Bay's flagship store during the Olympics. In 2015, the Cowichan Tribes were faced with the issue yet again when Ralph Lauren launched their own line of Cowichan sweaters. Charles Seymour, Chief of Cowichan Tribes, stated that . They appear to have come to an undisclosed agreement with Ralph Lauren changing the name of their sweater to . The Cowichan could have had a stronger claim against Ralph Lauren, given that they had already turned their minds to protecting their intellectual property through trademark law. In 1995, the Cowichan Band Council with the Canadian Intellectual Property Office to register the word “Cowichan”. .

Collective Ownership Over Cultural Artwork

Canadian courts have not yet grappled with the issue of collective ownership of Indigenous artwork. The Federal Court of Australia explored this notion in . The applicant, Indigenous artist John Bulun Bulun, sought relief for copyright infringement of a bark painting, which R & T Textiles had used on t-shirts. The painting breathed life into a traditional story that the Bulun community has been passed down for generations. R & T Textiles admitted they infringed Bulun Bulun’s work but pleaded ignorance and pulled the shirts from their shelves. The court was tasked with determining whether the painting’s copyright belonged solely to John Bulun Bulun, or if the community collectively owned the copyright given that the ancestral teaching was shared amongst the community. The court was mostly silent on the issue of collective ownership, recognizing Bulun Bulun as the legal title holder. However, the court concluded the situation gave rise to unique fiduciary obligations that Bulun Bulun owed to his community.

The World Intellectual Property Organization also acknowledged collective ownership as a potential method to protect Indigenous knowledge. In a 1999 , a proposed solution was to identify a community Elder who recorded the knowledge to prove the source of ownership and then assign the intellectual property right in the name of the community. The paper noted that this solution would be particularly helpful in situations where oral history is the most identifiable source of ownership.

Current State of the Law on Tattoo Designs

It is likely that tattoos would fall under the under section 5(1), which delineates artistic works as expressions through visual medium. Tattoos are arguably expressions through visual medium. Of note, in., the Federal Court ruled that legal protection of works is not restricted based on the medium in which it is presented.

Canada has never ruled on an issue of copyright ownership over tattoos; however, Canadian courts may look internationally to assist them in determining how or if they should be protected. In 2009, the Belgian Court of Appeal was tasked with deciding whether a tattoo could be granted ownership under Belgian copyright law in . The court ruled that the tattoo artist did in fact own the copyright in his tattoo design; however, he was limited by the personality rights of the person he tattooed. Notably, Belgian copyright law includes a , which includes the right to control your image. The Canadian does not include such a provision (but Canada does have the common law tort of '). The United States has also ruled on the issue. In , Inc., a tattoo artist sued Take-Two, a video game producer, for copying tattoos the artist had inked on a World Wrestling Entertainment (WWE) wrestler. However, the wrestler had licensed their likeness to WWE, who in turn licensed it to Take-Two. The court held that the tattoo artist holds valid copyrights for the tattoos, and that there is no implied license from the tattoo artist to use their tattoos as part of the bearer’s likeness.

Going Forward

The concept of collective intellectual property rights as a means of protecting cultural artwork and stories is in its infancy, but should be explored. If traditional Inuit tattoos are ever used for commercial gain in Canada, a particular Inuit community could seek relief from the Federal Court. It is presently unclear if the court would recognize collective ownership over copyright.

The post Traditional Tattoos on the Red Carpet: Continuing the Conversation of Collective Ownership appeared first on IPOsgoode.

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Claire Wortsman is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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From the thrilling gold-medal finish of the women’s soccer team to Andre De Grasse becoming the first sprinter to bring home gold since 1996, there was no shortage of exciting moments for Canadians at Tokyo 2020. Penny Oleksiak made history as the country’s most decorated Olympian of all time. Jamaica’s Elaine Thompson-Herah also made history in Tokyo as the first woman to win gold in the 100 and 200 meters in consecutive Games. After posting footage of her impressive feat and her family’s celebration to Instagram, Thompson-Herah was, as she , “blocked on Instagram for posting the races of the Olympic because [she] did not own the right to do so.” The New 91��ɫ Times that a spokesperson for Facebook, Instagram’s parent company, confirmed that it removed Thompson-Hera’s video but claims her access to the app was mistakenly suspended.

The International Olympic Committee (IOC) athletes to share Olympic Games content on their personal social/digital media accounts or website unless it contains audio/video of the areas referred to as the Field of Play (“the area used for a sporting competition or ceremony”) or Back of House (“non-public areas, within and/or surrounding a venue”). IOC regulations are only one of the many sets of rules that surround the intellectual property (IP) of the Olympic Games. James Bikoff, who has extensive experience litigating the IOC’s trademarks, on an episode of that, depending on the country, Olympic IP can be protected by national statutes (see �䲹�Բ��岹’s ), the (which Canada is not a contracting party to, but are), and special protection for the words “Olympic” and “Olympiad” in various languages across the generic top-level domain names (e.g. .com, .org).

�䲹�Բ��岹’s Olympic and Paralympic Marks Act (OPMA) was enacted in 2007 and includes a list of 39 protected Olympics-related marks in Schedule 1. Although one might think that this statute contains all of the necessary information on Olympics-related marks in Canada, matters are further complicated by the fact that the Canadian Olympic Committee (COC) continues to register marks not found in OPMA as official marks under the . Teresa Scassa �䲹�Բ��岹’s official marks system – which allows “public authorities” to sidestep the application and review process otherwise required�� – ��as “anomalous and downright dysfunctional.” The result of COC’s registering of official marks is that certain marks (e.g. ) enjoy simultaneous protection as official marks and under the OPMA, and may continue to receive protection under one after being removed from the other. Another odd result is that certain marks (e.g. the ) are protected as an official mark but not under the OPMA, which may present difficulties as certain businesses look to the OPMA to check their compliance. ��

Canada is not alone in facing criticism for its extensive protection of Olympics-related IP. During her time as a trademark law professor at Drake University, Shontavia Johnson wrote that she the laws created solely to protect the Olympics had been stretched too far. She described her concerns, which include the high level of difficulty for companies, especially small businesses, to know when their activities are illegal and obtain permission to do the right thing. Johnson also explained that most American Olympic athletes scramble to make a living, and that the IOC and national Olympic committees exercise a tight control which may prevent athletes from profiting off of the value which they create for the Olympic Games.

restricts social media posts and advertisements published by athletes and sponsors during the Games, both in volume and content. These restrictions on permitted publications may deter smaller companies who cannot afford to become official Olympic sponsors but who would gladly sponsor an individual Olympian from doing so, either because they feel it would result in an unsuccessful campaign or because they are afraid of accidentally breaking the rules. In Canada, even to congratulate an athlete they sponsor, companies are not permitted to use a multitude of hashtags or words that generate social media buzz, including Tokyo 2020, Olympics, #teamcanada, and #summergames. ��

In light of the popularity of Olympians posting on social media platforms like during Tokyo 2020, it will be interesting to watch for potential clashes between athletes and governing bodies related to IP at Beijing 2022. As social media posts generate buzz and draw fans, spectators will have a chance to enjoy getting behind-the-scenes looks and instant updates from their favourite athletes. This may drive some policy changes. On the other hand, Michael Lynch, a veteran sports marketer, IOC’s IP as its “primary asset.” Striking a balance between generating ample revenue to support athletes and events and serving the interests of individual athletes, sponsors, and fans seems an Olympic balancing act.

The post Intellectual Property Protections of Olympic Proportions: A Look at Tokyo 2020 appeared first on IPOsgoode.

Will the millions of people sharing these Olympic GIFs be punished? The short answer: it is legally possible, but success is highly unlikely.

Enforcement will be a major road block

Part III of the expressly prohibits the use of Olympic material for GIFs. Pursuant to the Canadian (the “Act”), the IOC has the right to produce, reproduce and prevent others from using Olympic material in any way with which they do not agree. Anyone, including the everyday Facebook and Twitter user, is therefore in violation of the ������’s when they create and share Olympic images over the internet without the consent of the IOC.�� However, enforcement of the new rules will likely be a major road block for the IOC.���� As by : “[y]ou can legislate all you want but at the end of the day if people are not going to obey by your rules . . . you’re going to have an uphill battle”. With social media users totalling in the billions and extending to almost every jurisdiction on the planet, the cost of rigorous enforcement may be too high and ultimately not worth it.

The IOC may instead decide to target the social media companies for providing a forum for posting prohibited material. In bringing an action, the IOC must establish that these forums authorized the rights-infringing activity as per the ������’s ��. But many social media outlets, like Twitter, have terms of use that expressly state that they and expect the same of their users. The terms indicate for inappropriately posting copyrighted material.��

Currently, a person authorizing an activity is only to do so to the extent they do not violate the law. Furthermore, does not flow from the mere fact that social media companies provide a forum for users to post the rights-infringing graphics.�� It is therefore difficult to support the position that social media companies like Facebook and Twitter authorize such rights-infringing posts.

The delicate balance between the rights of the owner and public interest

Courts have held the concept of fair dealing as not only a defence to copyright infringement but also an of the Act and as a . Its purpose is to balance the rights of the owner to the profits of their against the public interest in promoting dissemination of such works. Users of this defence must prove that their copyright infringing activities were fair and for the purpose of , or . The latter two do not infringe copyright when the is properly mentioned.

The courts have stated that what is is a question of fact. In determining whether certain activities were fair the courts consider: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Twitter and Facebook users are likely posting GIFs for comedic relief rather than for commercial gain. The average post of this kind may fall under s. 29 of the Act’s criticism, parody and satire exceptions. Moreover, sporting events typically t to begin with, as held in Canadian Admiral Corp v. Rediffusion Inc [1954] Ex. C.R. 382, 14 Fox Pat. C. 114. (not followed by the Federal Court of Appeal in the later case of ).

Sharing images and graphics of televised sporting events on social media has become widely popular among sports audiences, so much so that single GIF may be tweeted and re-tweeted millions of times. Furthermore, GIFs usually last mere seconds, not entire performances or games. Consequently, it will be very difficult to argue that GIFs provide a realistic alternative to watching the Games in a way that could be considered a substantial part of any work for the purpose of establishing a copyright infringement.

Could the ban upset users enough to forego watching the games?

Some fear that the IOC’s policy may do more harm than good. The ban may be seen as contrary to the celebratory spirit of the Olympics and users may consequently decide not to tune in.�� However, since many users have simply elected to ignore the prohibition and continue posting graphic material, it is unlikely the ban will have any lasting negative effects on the Olympic brand.

Olivia McKenzie��is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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In a hundred years, the vaulting pole has changed from a piece of hardwood to an intricately-built piece of fiberglass and carbon fiber, assembled through patented methods. Unsurprisingly, the pole vault record is the most frequently broken world mark in men’s track and field history. As of 2014, the International Association of Athletics Federations (IAAF) has reportedly ratified , set by 33 different vaulters. The is Renaud Lavillenie of France, who cleared a height of in Donetsk, Ukraine in 2014. To put this into perspective, the world record in 1904 was 4.02 metres. The best pole captures all of the energy transferred to it by the vaulter and efficiently transfers it��back to the vaulter as they are launched into the air. Minimal increases in the world record in the last decade have hinted that the combination of materials technology and athletic performance may be reaching its peak. The heights achieved by modern pole vaulters undoubtedly rely on the pole. However, with all vaulters equipped with similar fiberglass poles, the sport becomes a truer contest of technique.

The Technology

Originally, vaulting poles were made out of , typically solid ash or hickory. Starting around the beginning of the 20th century, poles began to dominate the sport. These poles were significantly lighter their hardwood counterparts, allowing for a faster run up. More importantly, they could bend, whereas hardwood poles could not.

The next innovation in poles came along with the introduction of aluminum as a key material. The Carpenter patent () discloses a hollow vaulting pole made from an aluminum alloy. The invention provides for a significant reduction in weight over vaulting poles formed of wood which typically require a large diameter to prevent splintering. The invention's one-piece design is swaged into successively smaller cylindrical sections throughout its length to create a pole that gradually reduces in diameter up to where the vaulter grips the pole. Furthermore, the bottom end of the pole is closed with a convex-shaped endcap that acts as a pivot when the pole contacts the ground. The rounded endcap replaced a metal spike at was normally attached to the bottom of the wooden vaulting poles.

The Lindler patent () represents an improvement in the manufacture of vaulting poles made using the next key material: fiberglass. It discloses a glass-fiber reinforced vaulting pole that possesses 10% greater hoop strength than previous glass-fiber vaulting poles. To manufacture the improved vaulting pole, knitted glass-fiber tape pre-impregnated with a thermosetting resin is wrapped around a mandrel. Next, pre-impregnated longitudinal glass-fiber filaments are laid about the tape substantially parallel to the axis of the mandrel. Four layers of cellophane tape, two layers clockwise and two counter-clockwise, are then helically wound about the longitudinal glass-fiber filaments. The assembly is hung in an oven heated to a range of temperatures for specific durations to cure the epoxy resins. After the cooling, the mandrel and cellophane are removed. Next, a helical winding of glass-fibers, pre-impregnated with a thermosetting resin, is applied to the surface of the pole. After curing and hardening the winding to the pole, the pole is cut to its desired length and is fitted with a pivot endcap in one end and a plug in the other.

The Jenks patent () presents a fiberglass vaulting pole manufactured in a way to improve hoop strength. The pole is built on a mandrel by first helically winding epoxy impregnated fiber glass tape into a continuous succession of butt-jointed turns with the tape's fibers��extending lengthwise of the tape. Next, a rectangular shaped piece of epoxy resin impregnated fiberglass broadcloth is wrapped multiple times over the tape. A fiberglass tape, identical the first tape, is then helically wound over the cloth in the direction opposite to the first tape. Since the taped turns are crossed with one another, the butt joints of each tape are reinforced by the tape of the other layer. Next, another cloth wrapping is added but with an isosceles trapezoidal shape. Having the trapezoidal wrapping as the outer layer is advantageous because changes to the shape of the trapezoid and the number of times it is wrapped around the mandrel can be used to alter the pole's design. Finally, the mandrel comprising the four wrappings goes into an elongated curing chamber which applies heat to cure the resin and external pressure to compact the fiberglass and epoxy into a unitary rigid structure. The two tape layers give the pole great hoop strength since the fibers on the tape extend primarily around the pole, is in contrast to woven tape where 50% of the fibers extend lengthwise and do not contribute to hoop strength. With the broadcloth being located between the tape layers, it acts as a column load barring member since its lengthwise fibers are firmly fixed in position to resist splitting.

The Johnston patent () improves upon its predecessors by describing a vaulting pole endcap designed to provide additional forward penetration of the pole into the plant box. This design allows the vaulter to hold the pole higher and hang for a greater period of time below the rotating pole.

The Watry et al. patent () presents a vaulting pole manufactured with five filament layers in which at least one is a carbon weave layer. The preferred location of the carbon weave is in the second layer of the body wrap due to its strength in all directions. The weight of the vaulting pole can be further reduced by replacing additional fiberglass layers with carbon fiber layers. Most world class vaulters have continued to use 100% fiberglass poles as the reduction in weight provided by carbon fiber does not overcomes the slight decreases in durability.

The Bentley patent () introduced a vaulting pole with an angular deviation away from the pole’s lengthwise dimension for increasing the vaulting pole plant angle and providing an ergonomic hand grip. The greater the pole angle a vaulter can achieve when planting the pole in the plant box, the greater the vaulter’s ability to move the pole toward the landing pit. This invention has not yet gained widespread use by vaulters.

Canada in Rio

Canada is a medal threat in both the men’s and women’s pole vault in Rio. Shawnacy Barber of Toronto enters as the reigning men’s world champion after his win at the 2015 World Championships in Beijing. Earlier this year, Barber joined the , becoming its 19th member and, at age 21, the youngest ever to clear the height. On April 9, 2016, Alysha Newman of Delaware, Ontario set the new Canadian women’s pole vault record by clearing a height of . Newman, at age 22, enters Rio as the 4th ranked women’s vaulter in the world. The men’s pole vaulting final starts at 8:35 pm on Monday, August 15, while the women’s pole vaulting final starts at 8:30 pm on Friday, August 19. Be sure to tune in to cheer on our Canadian vaulters all the while contemplating the remarkable evolution in pole vaulting patents.

Justin Philpott is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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As this chapter will show, the case of fake Beijing Olympics merchandise is rather curious. Even though there undeniably is a significant reduction of this merchandise in Beijing and other major cities during the Olympic Games, fake merchandise was widely present in other parts of the country. To a large extent, the presence of fake Olympic merchandise has shown that the challenge of confronting counterfeiting in China is more a reality than an excuse. It also provides an instructive example for understanding what the Chinese government can and cannot do in its effort to combat massive counterfeiting, the necessary complements for success, and the remaining challenges concerning efforts to protect trademark rights in such a large, complex, and highly populous country.

This chapter begins by describing the measures that the Chinese government and the Beijing municipality had taken in the run-up to the Beijing Olympics. It then explains why the case of fake Beijing Olympics merchandise provides an instructive example of the challenges to combating massive counterfeiting in China. In particular, this chapter explains the local protectionism problem, the need for both the government will and the people’s will, and the inevitable trade-offs concerning the use of enforcement resources. The chapter concludes with some lessons on the future protection of trademark rights in China.

Featured here is an abstract of a paper by , IP Osgoode Research Affiliate, Kern Family Chair in Intellectual Property Law and Founding Director of the Intellectual Property Law Center at Drake University Law School. Born and raised in Hong Kong, Professor Yu is a leading expert in international intellectual property and communications law. He also writes and lectures extensively on international trade, international and comparative law, and the transition of the legal systems in China and Hong Kong. The full article can be found .

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Vancouver-based yoga sportswear company Lululemon , just in time for the 2010 Olympics. The new line of sweatshirts, tuques, and t-shirts features the colours of Canada, the United States, Germany and Sweden and is cheekily titled the “Cool Sporting Event That Takes Place in British Columbia Between 2009 & 2011 Edition.” Though clearly intended to cash in on the upcoming Olympics, VANOC has signaled that it does not intend to pursue legal action against Lululemon. VANOC did, however, condemn the new line as disappointing and poor sportsmanship. It appears that through some clever maneuvering Lululemon has successfully slipped through the “ambush marketing” provisions of the [OPMA].

Ambush marketing refers to the practice of non-official sponsors of large events creating associations between themselves and the event through clever marketing (much to the chagrin of official sponsors who shell out big bucks for those exclusive rights). Unlike traditional common law "passing off" cases where a manufacturer confuses and misleads consumers as to the source of its goods, with ambush marketing the ambusher trades under their own name but creates confusion as to whether they are��associated with��the event or not. For the 2010 games the Hudson’s Bay Company is the official clothing sponsor and has the contract to design, market, and sell all the��official Canadian��Olympic gear.

The leading case on ambush marketing in Canada is NHL v. Pepsi (1992), 92 D.L.R. (4th) 349, 42 C.P.R. (3d) 390 (B.C.S.C.), aff'd (1995), 122 D.L.R. (4th) 412, 59 C.P.R. (3d) 216 (B.C.C.A.). The NHL had signed an exclusive marketing deal with Coca-Cola where Coke would be the sole soft-drink sponsor for the Stanley Cup Playoffs. However, through a bit of maneuvering Pepsi secured TV ad space during the playoffs and launched its own playoff hockey-themed advertising campaign (featuring Don Cherry, no less). The BC Superior Court held that Pepsi had not committed a passing off, nor had it committed various other economic torts. The court noted that Pepsi had included a disclaimer in all of the ads, and that the NHL was in some sense the author of its own misfortune when it failed to tightly control its TV advertising. It appears therefore that ambush marketing of this sort is not typically illegal in Canada.

But that’s not the end of the story so far as Olympic merchandising goes. In 2007 Parliament passed the OPMA, an act which grants a kind of “super official mark” status to the Olympic marks, providing greater protection than even what is offered for Government of Canada marks. The OPMA was covered previously in a , as well as in University of Ottawa law Professor Teresa Scassa’s 2008 article “” (available with QuickLaw account). The strong IP protection in the OPMA was essentially part of the deal Canada made with the IOC when Vancouver was awarded the Olympics, and all the other recent Olympic countries have enacted similar legislation.

Section 4(1)(b) of the OPMA (the ambush marketing provision) makes it illegal to mislead the public into believing that a business association exists between a non-sponsor company and the Olympics. It is possible that VANOC could use this section to get an injunction against Lululemon, but they evidently have decided not to go this route. Perhaps this is because Lululemon’s carefully drafted clothing line avoids using any of the Olympic marks, and through its smart alecky branding the company actually implies that it is not an official sponsor. Or, perhaps VANOC just wants to avoid the bad publicity of a lawsuit against a well-known Canadian company.

The whole situation raises some questions about what the Olympics are really about and whether they are really the boon for local businesses that they are made out to be. The Olympics have been criticized in recent years for being less about sporting excellence and more about being a massive marketing cash-grab. Smaller Canadian companies and certainly local Vancouver businesses have no chance at being official Olympic sponsors, and the IOC seemingly would like to see them completely shut out, with the profits instead flowing to the big-ticket advertisers like Coke, McDonalds, and GE. Though certainly not a mom and pop operation, Lululemon is nevertheless a Vancouver-based clothing company, and it doesn’t seem unreasonable to me that they and other Vancouver retailers should be able to capitalize on the massive “cool sporting event” that will shortly be gripping their city.

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