Seal Of Approval From Federal Court Of Appeal In Jewelry Design Case

• Published date: 25 January 2022
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Copyright, Trials & Appeals & Compensation
• Law Firm: Bereskin & Parr LLP
• Author: Mr François Larose, Tamara Céline Winegust, Martin Brandsma and Mitchel Fleming

The much-anticipated appeal decision in Pyrrha Design Inc. v. Plum and Posey Inc., 2022 FCA 7, gives strength to the principle that "the simpler a copyrighted work is, the more exact must be the copying in order to constitute infringement." In dismissing the appeal of the Federal Court's decision in Pyrrha Design Inc. v. Plum and Posey Inc., 2019 FC 129, (per Phelan, J.) the Federal Court of Appeal found no palpable and overriding errors in the lower court's reasoning and determination that the Respondent, Plum and Posey, did not infringe any copyright the Appellant, Pyrrha, had in its jewelry designs. Both parties created similarly designed jewelry using antique wax seal impressions. The imagery on the seals used by each party was in the public domain, as was the "lost wax" casting method employed by the parties to create their products.

Of interest, in reviewing the Federal Court's infringement analysis, the Appellate judges found no error in Justice Phelan using a two-step process to determine whether a "substantial similarity" existed between the works at issue, while taking an overall "holistic-qualitative" approach to determine the issue as outlined by the Supreme Court in Cinar Corporation v. Robinson, 2013 SCC 73. The two-step process...