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

Using the Internet inevitably requires consenting to have your personal information used, collected, and disclosed by the websites you visit. A common reason for individuals, corporations, and non-profit organizations to collect your personal information is to influence your behaviour online, from your to your . One of the most effective ways to influence consumer behaviour online is through targeted advertising.

Value for Advertisers

Access to personal information has become necessary for advertisers to convert potential leads into customers. Think back to 2012, for example, when a suggested that a statistician working at Target predicted a teenage girl’s pregnancy based on her shopping habits. What did Target do with this information? It mailed her coupons for baby clothes and cribs.

that the value of your personal information to advertisers depends on various factors. Factors influencing value include your gender, race, and sensitivity of the information (that is, cost more than ). If, for example, the target audience for a new sneaker launch is young males of middle eastern origin, the spent to acquire your personal information is a minor investment to incur to influence you to purchase $180 sneakers.

Value for Users

Traditionally, users have valued the ability to share their personal information while using online services, like search engines or social media platforms, citing their .

However, increasingly, . This trend has mobilized startups in Silicon Valley to appeal to privacy-conscious users by providing them an incentive to share their personal information. Known as paid-to-surf models, companies in this space require their users to install browser extensions to track their browsing.

What monetary value do some privacy-conscious users demand to share their personal information? $20 a month for users of . Others are . While these paid-to-surf models have the potential to be disruptive, they are not yet a viable alternative, as users must surf a certain amount before they can cash out.  

Value Going Forward

The tech industry has built empires based on collecting, using, and selling its users’ personal information to third-party advertisers. Surprisingly, some factions of the tech industry are modifying their business models to limit the tracking of personal information. Apple, for example, introduced a new iOS in 2021, s. Similarly, on its Chrome browser is estimated to impact millions of advertisers.

Apple and Google argue that these changes are necessary to respond to increasing and customer sensitivity to sharing personal information (the IPilogue has documented increased regulation in the and ). However, , including , lament that the changes are veiled anti-competitive practices.

Interestingly, increasing barriers to the online advertising ecosystem may benefit users. If access to personal information becomes impeded, interested parties may need to incentivize users to share their personal information, increasing users’ bargaining power. Although it is unclear what effect Apple and Google’s changes will have on the ecosystem, I am hopeful that users can leverage more control over their personal information for fair compensation by technology companies or advertisers for their valuable commodity.

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The CN Tower has made available a detailed for any individual who wishes to use an image of the CN Tower. The Agreement states:

I therefore agree that I shall not, nor shall I authorize any other party to, distribute, sell, publish, broadcast and/or otherwise exploit any Tower Images, in any manner, media or territory whatsoever, without the express prior written consent of CANADA LANDS COMPANY CLC LIMITED, which may be unreasonably withheld or delayed, at such party’s sole discretion […] I further hereby agree to provide CN Tower with a copy of any such Tower Image, in its final form and context, as soon as available, and in any event prior to its release. CN Tower shall be provided a minimum of five (5) business days to review the image and approve or not approve of its use.

Further, the CN Tower appears on Adobe’s official list of .

The circumstances surrounding this alleged trademark infringement have raised questions with respect to whether the demand by CLCL is unreasonable. Bow’s lawyer, as , states:

The purpose of trademark law is to prevent confusion in the marketplace for specific goods and services, and to stop bad actors from ‘passing off’ counterfeit goods as the genuine article [...] It seems unlikely that CLCL is active in the business of publishing novels, let alone fantasy novels featuring a strong female protagonist who helps trolls and goblins succeed in the human world through her work at an employment agency.

Enforcing trademarks on landmark buildings can have significant implications with respect to expression and creativity, impacting various industries such as photography, visual art, and filmmaking. If every noteworthy building in Toronto was protected by trademark, a simple picture of Toronto’s skyline could require multiple licences prior to publishing. The necessity to obtain these licences, alongside the fear of potential legal consequences, can very well encourage artists to stop or avoid creating certain forms of art. Moreover, in today’s technology and socially-driven world, many photographers share their work on social media platforms. These platforms can have an abundance of followers, especially considering the increasing number of individuals who have pursued entrepreneurial paths as paid influencers (consider the Toronto-based photographer and influencer , for instance). This raises the question as to whether publishing an image online, on a platform with hundreds of thousands of authentic followers, can create legal concerns in the case that the photographed landmark building is protected by trademark.

As a national Canadian icon, it is understandable that the CLCL must work towards protecting the image of the CN Tower from improper usage. The Canadian Trademarks Database lists the CLCL as the current owner of a of the CN Tower with respect to a number of goods and services. However, as a national symbol and representation of Torontonian culture, do the CLCL’s allegations against Bow run counter to the purpose of trademark law? The main is to prevent unfair competition between companies and prevent consumer confusion. Architectural works are protected in accordance to the Copyright Act, , which provides that architects are in fact entitled to remedies upon infringement of their work. This copyright protection of architectural works has further been established and interpreted by Canadian courts.[1] With copyright law protecting the broader concept of any “original work,” it is questionable as to whether the protection of architectural work through trademark serves a necessary or beneficial purpose. The CLCL’s allegations against Bow and claims of ownership over the CN Tower’s trademark has, at the very least, for many members of the public and for creators at large.

Written by Alessia Monastero, IPilogue editor and articling student at Deeth Williams Wall LLP.

[1] Hay and Hay Construction Co. Ltd v Sloan (1957), 12 DLR (2d) 397 (Ont HC).

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