Patented Medicines (Notice Of Compliance) Decisions (Intellectual Property Weekly Abstracts Bulletin — Week Of January 18, 2016)

Patented Medicines (Notice of Compliance) Decisions

Court grants prohibition order; finds allegations of obviousness, lack of utility and insufficiency not justified

Leo Pharma Inc. v Teva Canada Limited, 2015 FC 1237

In a decision issued on November 18, 2015, the Federal Court allowed the proceeding, granting Leo Pharma a prohibition order in relation to its patent for use in the treatment of psoriasis. The Court held that the allegations of invalidity due to obviousness, lack of utility and insufficiency were not justified. Given that it was undisputed that Teva's product would infringe claim 17 of the '565 Patent, the Court granted the order sought by Leo Pharma.

Trademark Decisions

Appeal dismissed; use of trademarks in metatags in this case found not to be copyright or trademark infringement

Red Label Vacations Inc. (Redtag.ca) v. 411 Travel Buys Limited (411 Travel Buys Limited), 2015 FCA 290

The Federal Court of Appeal (FCA) dismissed an appeal from a trial decision finding that there was no copyright in Appellant's metatags and therefore, no copyright infringement. The trial judge also found that the use of the Appellant's trademarks in the Defendant's metatags did not constitute trademark infringement, passing off or depreciation of goodwill (decision here; our summary here).

The FCA held that the issues raised by the Appellant were based in large part on findings of fact and that the trial judge had not made any palpable and overriding error in making these findings. With respect to trademark infringement, while the trial judge's finding that there was no use of the Appellant's trademarks was upheld, the FCA noted that "in some situations, inserting a registered trademark (or a trademark that is confusing with a registered trade-mark) in a metatag may constitute advertising of services that would give rise to a claim for infringement [...]"

Dawson J.A. issued a set of concurring...