Product Packaging
Product packaging can be protected by copyright. This protection subsists concurrently with trademark protection.
The expression of brand image and other information on product packaging may be protected under the Copyright Act. Copyright protection in Canada does not depend on registration or other formal steps. Copyright subsists automatically without any act beyond the creation of an original literary or artistic work or compilation. Registration is permissive but prudent if it is likely an action will be brought for infringement.
Originality
Copyright subsists only in original works. The originality required by the Act relates to the expression of thought in which the work is presented. For a work to be "original" it must be more than a mere copy of another work. At the same time, it need not be creative in the sense of being novel or unique.
What is required for protection is an exercise of skill and judgment. Skill means in this context the use of an individual's knowledge, developed aptitude or practiced ability in producing the work. Judgment means the use of one's capacity for discernment or ability to form an opinion or an evaluation by comparing different possible options in producing the work.
The exercise of skill and judgment will necessarily involve intellectual effort. A purely mechanical exercise will not be sufficient. For example, any skill and judgment that might be involved in simply changing the font of a work to produce another work would be too trivial to merit copyright protection as an "original" work.
The amount of skill and judgment required cannot be defined in precise terms and each case must be decided on its own facts. In addition, the type of work in issue may influence the determination; for example a photograph is considered in different terms than other works.
Copyright has nothing to do with the literary or artistic merit of the author's work.
Generally speaking a work which is a slavish copy of an earlier work will not be entitled to copyright as it is not original. Skill and judgment relating solely to the process of copying cannot confer originality. However, a work which is substantially derived from pre-existing material may still be the proper subject matter of copyright if sufficient skill and judgment have been bestowed on it.
The owner of copyright is not entitled to a monopoly in the protected work. Other individuals may produce the same work so long as they do so independently and their work is original in the sense in which that word is used in the Act.
Trademark Act Amendments: What You Need To Know? September 12, 2014 Webinar
I am speaking at a webinar for the Osgoode Hall Professional Development Group regarding Bill C-31. The Bill, which contains the most significant amendments to Canada's trademark legislation since 1954, has now received Royal Assent. Trademark owners and their advisors need to understand how these amendments work and the opportunities that will be available to them.
For further information and to register, go to:
http://www.osgoodepd.ca/cle/2014-2015Fiscal/2014_webinar_trademark/index.html
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
