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Intellectual Property

Government's IP strategy a boon to Canadian SMEs

The federal government’s Intellectual Property Strategy is a positive initiative for Canadian businesses — in particular, small and medium enterprises (SMEs), Toronto intellectual property lawyer John Simpson tells AdvocateDaily.com.

The government announced it is committing $85.3 million over five years to help Canadian businesses, creators, entrepreneurs and innovators understand, protect and access intellectual property through a comprehensive IP Strategy.

Simpson, principal of Shift Law, a boutique firm specializing in IP and new media law, says the strategy shows a recognition by the Canadian government that if businesses are going to be innovative, there needs to be more education and resources to assist SMEs to create and leverage their IP assets. 

The government’s three-part strategy includes:

  1. IP awareness, education and advice
  2. Strategic IP tools for growth
  3. IP legislation

“It remains to be seen how effective the education component will be,” Simpson says. “The government is offering a suite of seminars, training and information resources tailored for businesses. It’s a fantastic idea, but only if people know about these resources.”

He says if businesses, particularly SMEs, utilize the education component, they may recognize, leverage and enforce rights in their IP assets.

The second part of the strategy deals with tools for growth, which includes more efficient and less costly dispute resolution at the Federal Court.

“Given the complex nature of IP litigation, the cost of enforcing rights can be prohibitive for SMEs. I think this part of the strategy is recognition by the government that the reality is small businesses that have IP simply can’t afford to enforce their rights.

“If you’re going to encourage businesses to invest in IP, you have to help them enforce their rights,” Simpson says.

Speedy resolution will likely mean the use of more prothonotaries — procedure-oriented judges who can move things along quickly, he says.

“My hope is that either through Federal Court practice initiatives or legislative amendments that opportunities for summary judgment will improve,” Simpson says. “If the government is committed to speeding up the resolution of IP disputes, it has to be a multipronged approach that includes more resources, summary procedures and a proportionality perspective.”

The strategy’s third part, IP legislation, will introduce new bad faith trademark opposition and invalidation grounds. Simpson says this is interesting because trademark practitioners have been concerned by an amendment that would remove the use requirement when applying for a trademark.

“That will open up the opportunity for trolls who register a trademark without ever intending to use it other than trying to sell it to someone who does intend to use it in commerce,” he says. “Up until now, the government ignored the negative reactions to this amendment.”

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