New Media and Copyright Newsletter
February 28, 2003
TRADE MARKS/DOMAIN NAMES
.ca DISPUTE RESOLUTION: Owner of registered trade mark fails to prove its rights in trade mark
A January 2003 .ca dispute resolution proceeding concerning the domain name cheaptickets.ca is the first CDRP case in which a registrant successfully defended its registration. Although the complainant owned a Canadian trade mark registration for CHEAP TICKETS, the panel held that the complainant failed to prove it had rights in the mark prior to the registration of the cheaptickets.ca domain name. The complainant's CHEAP TICKETS trade mark application had claimed a date of first use prior to the domain name registration, however, the mark issued to registration only after the domain name had been registered. The complainant argued that it could rely on a presumption of rights arising from its trade mark registrations, but filed little evidence to show its CHEAP TICKETS mark had acquired distinctiveness at the time the domain name was registered.
Case: Cheap Tickets and Travel Inc. v. Emall.ca Inc., BCICAC Case (January 31, 2003) (unpublished).
COPYRIGHT
SOCAN TARIFF 22: Most Internet access providers not liable to pay royalties for copyrighted music posted on host server
In the ongoing debate over who should pay for copyrighted music posted online, the Federal Court of Appeal in 2002 held that Internet access providers were not liable for royalty payments, when acting strictly as conduits, or providing only the "means" of telecommunication. In other words, when an Internet access provider is merely performing activities that support the provision of disk space, such as housing and maintaining servers, or monitoring hits to webpages, the provider may be exempt from paying the tariff royalties for copyrighted music posted on their servers by users. The court held that access providers who perform caching activities should pay royalties. Also, the tariff could extend to foreign-based sites with a real and substantial connection to Canada.
See case summary by Jeanette Lee SOCAN TARIFF 22
See SOCAN's news release at http://www.socan.ca/jsp/en/news_events/news_archive/Tariff22.jsp
Full text of the decision available at http://www.fct-cf.gc.ca/bulletins/whatsnew/a-764-99_e.pdf
Copyright (c) 2003 Bereskin & Parr
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