Copyright Cases

Copyright Infringement Allegations Dismissed With Respect To Software Programs

Planification-Organisation-Publications Systèmes (POPS) Ltée v. 9054-8181 Québec Inc. (IDP), 2013 FC 427

This case involved a dispute over ownership and alleged infringement of copyright in a number of computer software programs. The Court held that the plaintiff company (POPS), has been the copyright owner in one program, CERES, since October 2008. The Court then held that the plaintiff, Posada, was hired by the defendant company, IDP, to develop adaptations of CERES, including work on Omega, Commex and Epsilon.

The Court also held that Posada granted IDP at least an implied non-exclusive license to use CERES and its adaptations, including Omega, Epsilon and Commex. Furthermore, the defendants rebutted the presumption that (POPS) owned Epsilon and Commex and the Certificate of Registration in respect of those two programs was ordered struck from the Registrar of Copyrights. Ultimately, the Court came to the conclusion that the defendants did not infringe any copyright in any versions of the software. Thus, the plaintiffs were not entitled to any damages, or any other remedies other than a declaration that they own the copyright in CERES.

The Court then considered the defendant’s claim for punitive damages, and held that despite having suffered significantly through the course of conduct adopted by Posada, they had not established that such conduct met the high test for awarding punitive damages. Furthermore, the Court declined to order solicitor-client costs, but ordered plaintiffs to reimburse the defendants all agreed court costs.

Trademark Cases

TMOB Decision Overturned: Marked Held Not to be Descriptive

Backrack Inc. v STK, LLC, 2013 FC 424

Before the Trademarks Opposition Board, the respondent, STK, was successful in opposing the applicant’s trademarks as they applied to wares. However the Marks were allowed as they applied to services. The applicant appealed the wares decision to the Federal Court and the respondent did not participate in the appeal. The Court granted the appeal.

The Court held that the Registrar had dissected the mark into its component elements rather than considering it in its entirety. Thus, the Registrar’s finding was unreasonable. Thus, the marks were held not to be descriptive of the applicant’s wares. Furthermore, the marks were held to have acquired distinctiveness in Canada as of the relevant dates. Thus, the marks were held to be registrable.


Chantal Saunders

Beverley Moore

Adrian J. Howard


Intellectual Property