By Mohsen Hasheminasab

In an era of increasing cross-border trade and digital innovation, the lack of standardised contractual frameworks for international intellectual property (IP) transactions creates legal uncertainty and commercial risk. In a recent research project, I explored the feasibility of developing IncoIPterms – a set of globally accepted contractual terms for IP agreements modelled after the (or International Commercial Terms) widely used in the international trade of goods. By analyzing the key legal challenges, including the territorial nature of IP and its intangible subject matter, and offering practical solutions, I hoped to plant the seed for the future development of IncoIPterms that could similarly enhance legal predictability, reduce disputes, and so promote more efficient international commerce in intangible assets.

Why Look to Incoterms?

The Incoterms, developed by the International Chamber of Commerce (ICC), are a globally recognized set of rules for the international sale of goods. These terms have become an essential part of international trade law. They clearly define the obligations, risks, and costs borne by buyers and sellers, helping to minimize disputes and standardize practices across jurisdictions.

This success prompts the question: Can we replicate this model for intellectual property? Enter the concept of IncoIPterms: uniform international commercial terms specifically designed for IP transactions.

The TRIPS Gap and the Need for IncoIPterms

While the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) aimed to harmonize IP law globally, its requirement for minimum standards has often led to the maximization of IP rights instead. The result? A growing imbalance between IP protection and the need for legal consistency in cross-border commerce.

IncoIPterms could fill this gap by offering flexible, standardized contract language for IP transactions, ��in the same manner as Incoterms operate in the trade of goods.

Key Challenges

Of course, developing international IP terms is not a straightforward proposition. Some of the main obstacles include:

• The territorial principle in IP: Unlike Incoterms, which govern private commercial agreements, IP rights are enforced through national legal systems. The territorial nature of IP rights complicates any attempt at standardization.
• The intangibility of IP: Incoterms apply to physical goods, whereas IP involves intangible assets—requiring entirely different legal considerations.
• The diversity of IP subjects: The subject matter of IP deals varies widely. This diversity makes universal standardization a real challenge.
• A lack of global consensus: The establishment of standardized IP contractual terms is essential, but such terms must be widely accepted by all relevant jurisdictions to have practical utility. Without international consensus, such terms would lack the legal legitimacy required to resolve disputes or provide certainty in commercial transactions.

Viable Solutions

While there are hurdles to be met in the development of IncoIPterms, none is insurmountable and solutions do exist:

• Clarify the scope: IncoIPterms wouldn’t regulate the granting of IP rights (which is the domain of states) but rather the commercial use of those rights after they’re granted. Like Incoterms, they could function without interfering with state sovereignty. In fact, one of the main reasons for the creation of Incoterms was the territorial principle and variations in national law, so this challenge is not new.
• Embrace IP’s intangibility: Though intangible, IP assets still benefit from contractual clarity. Indeed, given the complexities and flexibilities inherent in establishing the subject and scope of IP rights, standardized terms are all the more necessary to reduce confusion and foster greater legal certainty in IP transactions.
• Focus on core agreement types: While the subject matter of IP contracts may differ, they generally fall into a few main categories: assignment, permission for use or sale, sale of IP-based goods, joint ventures, and confidentiality agreements. By establishing standardized terms for these core categories, a framework can be built that accommodates diversity while remaining aligned with the territorial nature of IP, except in the case of assignment. As with Incoterms, exclusions and updates can be applied regularly.
• Leverage existing practices: Customary international IP practices already exist. By building on these foundations, IncoIPterms could gain traction and acceptance across legal systems.

A Path Forward

Despite the complex nature of IP law, the potential benefits of creating standardized international contractual terms are clear. The criteria, standards, and categories under IncoIPterms must differ from those of Incoterms, of course, to suit the unique nature of IP. But just as Incoterms have helped streamline trade in tangible goods, so too could IncoIPterms promote smoother, more predictable global commerce in intangible assets.

The vision is not to override national IP systems, it should be stressed, but to offer a contractual toolkit that can be used across jurisdictions, thereby reducing ambiguity, enhancing efficiency, and ultimately supporting innovation and fair trade. Recognizing the distinction between the creation and commercial exploitation of IP rights, along with existing international practices, reveals that such international IP terms are both feasible and beneficial.

Developing IncoIPterms will require thoughtful legal design, international cooperation, and a strong understanding of both trade and IP law. But the reward—a predictable, transparent, and more dispute-resistant framework for global IP transactions—makes this a concept well worth pursuing.

Mohsen Hasheminasab is an International Visiting Research Trainee with IP Osgoode at �첥��Ƶ, an LLM student of International Commercial and Economic Law at the Department of Law, University of Tehran, and an Attorney at Law with the Iranian Central Bar Association. He is currently based in Toronto.

Have thoughts or feedback? Join the conversation by leaving a comment below or contacting the author at: hasheminasabmohsen@yahoo.com

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The  (IRAP) and the  (IPIC) have partnered to offer the  program for Canadian small and medium-sized enterprises (“SMEs”). IPilogue readers may have seen ’s&�Բ�����; of another CIC program, , which provides funding for a similar purpose through a different government channel. That article outlined the motivation behind these types of programs and summed up that  Canadian SMEs often lack access to the means to protect intellectual property (IP) and highlighted a clear economic need for innovative Canadian businesses to improve their IP commercialization.

NRC IRAP, CIC, and IPIC

The NRC IRAP provides a range of innovation support services for Canadian SMEs. The program offers funding, advisory services, and networking opportunities to help SMEs undertake research and development (“R&D”) and to commercialize, and improve their competitiveness in domestic and global markets. IRAP also provides support for technology adoption, productivity improvement, and business expansion. On February 16, 2023, the Government of Canada announced that NRC IRAP will be integrated into the  (CIC).

The CIC will be a new, operationally independent organization solely dedicated to supporting business R&D across all regions and all sectors of the economy. It is a federal initiative that will be  that aims to “play an important role in building a stronger and more innovative Canadian economy for generations to come.” The CIC will include an umbrella of programs, including both IP Assist and ElevateIP, to support the development and exploitation of IP.

IPIC is Canada’s professional association of patent agents, trademark agents and lawyers practicing in all areas of intellectual property (“IP”) law and is comprised of over 1700 members.  is to match SMEs with IPIC members who practice in their specific industry. The IP professional will help SMEs better understand the key aspects of IP and how it can support their business goals.

The IP Assist Program

There are three levels to the IP Assist Program — levels 1, 2 and 3 (L1, L2, L3, respectively). Each level brings :L1 – up to $1k, L2 – up to $20k, L3 – up to $20k+), as well as increasing engagement with an IP professional matched to the SME:

The L1 IP Awareness is a one-to-one IP awareness session during which an IP professional will provide industry-specific IP information and guidance to an SME. Engagement at L1 provides IP professionals with an opportunity to connect, support and guide innovative Canadian SME to help them achieve their business goals. Engagements with SMEs will take, on average, up to 3 hours and include an IP awareness presentation followed by Q&As.

The L2 IP Strategy relates to the IRAP SME’s specific technology space, aligns with the IRAP SMEs business objectives, and provides IRAP SMEs with specific prioritized IP actions. The IP Strategy must be informed by key relevant information relating to the technology and competitor landscapes relevant to the IRAP SMEs.

The L3 IP Implementation relates to detailed IP asset assessments, such as IP audits, trademark clearance searches, prior art searches and analysis, advice on branding strategy, legal analysis of IP landscaping, patentability analysis, licensing strategy formulation, and other activities. However, some patent and trademark preparation services and filing fees may not be covered.

Conclusion

Canada’s investment in the CIC indicates that there is an increased focus on innovation as a driver of economic growth. There is also a clear aim through programs like IP Assist and ElevateIP to ensure that IP generated by innovative SMEs in Canada are carefully strategized for and well-protected. Hopefully, this increases Canadian presence in innovation and brings greater investment in R&D into Canada.

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In March 2022, the Canadian Intellectual Property Office (“CIPO”)  its first artificial intelligence (AI)-authored copyright registration of a painting co-created by the AI tool, RAGHAV Painting App (“RAGHAV”), and the IP lawyer who created RAGHAV, Ankit Sahni. RAGHAV is the first non-human “author” of a copyrighted work. However, Canadian courts  that “[c]learly a human author is required to create an original work for copyright purposes” (para 88). Though the AI tool is a co-author with a human, the registration suggests that both RAGHAV and Ankit Sahni can constitute an author under the copyright regime and  amongst Canadian artists. Though the landscape in Canada is still unclear, the US Copyright Office (“Office”)  a clarification on March 16, 2023, about its practices for examining and registering works that contain material generated by artificial intelligence (AI) technology.

The Human Authorship Requirement

The Office  that the term “author,” used in both the US Constitution and the Copyright Act, excludes non-humans. To qualify as a work of ‘authorship,’ a work must be created by a human being and works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author are not registrable. This threshold reflects the Canadian copyright regime,. The author  significant original expression to the work that is  to be characterized as a purely mechanical exercise.

The US Copyright Office’s Approach to AI-Generated Work

The Office provided important  on assessing the protectable elements of AI-generated works. It begins by distinguishing whether the ‘work’ is one of human authorship, with the AI tool merely being an assisting instrument, or whether the protectable elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were conceived and executed not by man but by a machine.

If the machine produced the expressive elements of the work, it is not copyrightable. This guidance is critical for  surrounding Chat-GPT, where the AI tool receives a prompt from the user, and the user does not exercise ultimate creative control of the output. The Office provided an  where a user instructs an AI tool to “write a poem about copyright law in the style of William Shakespeare”. Given that the user contributes little to no expressive elements to the AI-generated output, the output is not a product of human authorship or protected under the US Copyright Act.

However, the Office also  that, in some cases, AI-generated works might contain sufficient human-authored elements to warrant copyright protection. This may apply in cases where the human selects or arranges the AI-generated elements or modifies the AI-generated material to a degree where it constitutes original expression. The analysis seeks to determine whether a human had ultimate creative control over the expression and formed the traditional elements of authorship.

This guidance is in response to a recent review by the Office of a  titled “Zarya of the Dawn” containing human-authored elements combined with AI-generated images. While the Office  that the author, Kristina Kashtanova, owned the work’s text and the selection, coordination, and arrangement of the work’s written and visual elements, copyright protection did not extend to the images generated by the AI tool, Midjourney. Though Kashtanova edited the Midjourney images, the Office held that the creativity supplied did not constitute authorship.

How will this apply in Canada?

Given the registration of RAGHAV as an author under Canadian copyright law last year, it remains to be seen whether CIPO will follow a similar assessment as the US Office and revisit the decision to register an AI-generated work as a work of joint authorship. However,  question whether moral rights, which are not part of the US regime, will extend to AI authors and if AI authorship will alter the copyright term of the last living author’s death plus 70 years. The increasing traction of AI warrants similar guidance from CIPO regarding the status of AI authorship under Canadian copyright law.

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On November 14 2022, the United States Court of Appeals for the Ninth Circuit ruled in &�Բ�����;(“Jiaxing”) that foreign parties to a trademark infringement complaint can be served by trademark owners within the U.S. because of . Statutory interpretation of s.1051(e) in this case provides a new way to serve foreign defendants via the Director of the United States Patent & Trademark Office (“USPTO”).  Specifically, Jiaxing provides that a foreign defendant may be served if they have filed an application for a conflicting trademark at the USPTO. This mitigates the traditional temporal, financial, and logistical challenges associated with preventing trademark infringement by foreign companies.

The Los Angeles-based &�Բ�����;(“San Antonio”) is known for their Stella Rosa brand that they have produced under the trademarks  since 1998. They , a Chinese company, for registering the mark “RIBOLI” for tands, containers, cocktail shakers, dishware, and other kitchen products. Jiaxing registered “RIBOLI” in 2018 for clothing and shoes and in 2020 for kitchen products. Accordingly, San Antonio filed a complaint for trademark infringement, trademark dilution, and false designation of origin. They are seeking an injunction against Jiaxing from using the “RIBOLI” mark, and an order to prohibit Jiaxing’s registrations.

The current route to service of foreign defendants is the Hague Convention, but San Antonio sought a faster and inexpensive way to serve Jiaxing. They did so under  which allows U.S. residents to serve the foreign defendant’s O agent or the USPTO director in “proceedings” that affect the mark. The provision states that if the trademark applicant is not in the U.S., they can designate a person in the U.S. who may be served on their behalf regarding the marks; and if that person is not found then the USPTO director may be served. 

Jurisprudence conflicts as to whether s.1051(e) is limited to USPTO proceedings or includes civil lawsuits. As such, the  that held the provision only applies to administrative proceedings. The Ninth Circuit reversed this by interpreting that the words “proceedings affecting a trademark” are broad enough to include civil litigation. Since , the provision must encompass serving process for disputes in district court. The Court held that the wording only requires that it’s plain and ordinary meaning be taken. Moreover, since the Lanham Act grants courts the power to affect trademarks in other ways, s.1051(e)’s use of the word “process” must apply to court proceedings. Further, the word , and thus it would have been  if it were not meant to also include civil proceedings.

Serving foreign defendants through s.1051(e)  as it governs service amongst foreign countries whereas s.1051(e) governs service within the U.S without international transmittal of documents; which means it .

Foreign infringers are increasingly popular and  on marketplaces that verify IP ownership, such as Amazon. The decision is significant, in that it may act as a deterrent — it warns foreign companies that an application at the USPTO is all that is needed to be served a U.S. lawsuit. The Court’s adoption of the plain and ordinary meaning is akin to the starting point of statutory interpretation in this context in Canada —  as adopted in Rizzo and Bell ExpressVu. This points to an expectation of similar results in Canadian courts, wherein a purposive analysis would be adopted to assess the ability of domestic trademark owners to serve foreign infringers.

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Every year on January 1, works protected under copyright law enter into the public domain due to their copyright protection expiring. Thus, as a new year approaches, those in the field of copyright look to see which works will expire at the end of the year. As the world entered January 2023, many excitedly anticipated that Disney’s copyright protection of Mickey Mouse in the United States (US) would expire at the end of 2023, allowing Mickey Mouse to . This means that  reproduced, adapted, published, publicly performed, and publicly displayed by anyone in the United States without infringing upon Disney’s copyright.

As a general rule in the U.S., for works created after January 1, 1978,  for the life of the author plus 70 years. However, for works created before January 1, 1978, the duration of copyright protection depends on several factors as set out by  in the United States. Mickey Mouse  in the US in 1928 with the film “Steamboat Willie,” so its copyright protection term was dictated by several factors outlined in chapter 3.Additionally, the expiration of the copyright term only applies to the original version of Mickey Mouse displayed in Steamboat Willie; later versions of Mickey Mouse will still be protected by copyright. This original version of Mickey Mouse is a black and white rat-like depiction with a long snout and black eyes, whereas later versions of Mickey Mouse include the version of Mickey with his signature red shorts and white gloves.  

Copyright law in the US has evolved many times in part as a result of Disney lobbying for copyright term extension. Originally, the Mickey Mouse copyright was supposed to expire in 1983 because when Mickey Mouse was first debuted to the public in 1928, copyright law only protected works for 56 years. However, in 1976 Congress passed the  which extended the copyright term to 50 years after the death of the author or 75 years after the death of the author if the author was hired by an employer to create the work. As a result, the Mickey Mouse copyright was then set to expire at the end of 2003.

Starting in 1990, Disney pushed hard for an extension of copyright protections. This resulted in the  which extended copyright protection to 70 years after the death of the author. This extension is why Mickey Mouse’s copyright protection is set to expire at the end of 2023. The extreme lobbying from Disney to extend copyright protections earned the 1998 act the nickname of the “Mickey Mouse &�Բ�����;������.”

Although the original Mickey Mouse’s copyright protection will expire at the end of 2023, Disney will still be able to protect the Mickey Mouse brand through trademark law. Mickey Mouse is  as Disney’s property because . Trademark protection can theoretically last forever if Disney can continually show that Mickey Mouse is associated with its company.  Disney will likely be able to continually show an association with Mickey Mouse. In 2007, Walt Disney Animation Studios  to incorporate the original version of Mickey Mouse. Therefore, although someone may use the original version of Mickey Mouse in a work, they are not able to use this version of Mickey Mouse for any branding purposes or any purpose that would cause consumers to be confused about the source of the Mickey Mouse product. These intersections between trademark and copyright law may stop Mickey from strolling into public use for the coming years.

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Eligibility

To be eligible, you must be currently enrolled as a JD candidate at Osgoode Hall Law School.��

All applicants must possess strong grades, exemplary organizational skills, be proficient in legal research and writing, and have a strong interest in intellectual property law.

Term

May-August 2023, with a possibility of continuing on for the academic year.

The successful candidates will receive compensation.

Application Procedure

To apply, please submit:

1. A cover letter;
2. A copy of your resume;
3. A copy of your grades (can be unofficial grades; please include any previous degrees); and
4. A sample of your written work on any topic of your choice (please limit to 3-5 pages).

to��iposgoode@osgoode.yorku.ca��by��March 31, 2023.

We thank all applicants in advance, only those students who will be interviewed will be contacted.

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Katie Graham is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On February 22, 2023, it was that Google is blocking news content on its platform for under 4% of Canadian users in a five-week test as a potential protest of Bill C-18. While Parliament referred to this secret news blocking test by the tech giant as “,” this reality of Bill C-18 does not come as a surprise to critics who voiced these concerns throughout the legislative process.

Bill C-18, the , was first passed by the House of Commons in April 2022 and aimed to respect online communications platforms that make news content available to persons in Canada. This would provide news publishers with a framework to strike deals with tech giants, such as Google and Meta, to share the revenue they receive when reposting news content from publishers.

Parliament stressed that Bill C-18 will help recoup financial losses sustained by the news media industry in Canada. However, there is great concern as to whether Google and/or Meta will limit or fully shut down its news aggregation services to avoid payments. These concerns are warranted, as Google its Google News outlet in Spain for eight years to avoid paying for links and snippets citing stories from Spanish newspapers and other outlets. Google also conducted similar news blocking tests in response to the attempting to pass a code similar to Bill C-18 which sought to promote negotiations between news publishers and tech giants. Even more recently, Google Google News snippets in Czechia in response to Czech Copyright Act reform seeking to compensate Czech news publishers.

The costs of Bill C-18 to Google and Meta are not insignificant, with the estimating news businesses to receive a total compensation of $329.2 million CAD per annum from digital platforms. Given that both and generate upwards of $100 billion USD per annum, the costs of Bill C-18 appear to be a drop in the bucket for the tech giants. However, the backlash from Google to a lack of input from the Parliamentary Budget Officer as to how this figure was calculated. Parliament consulted the Australian Communication and Media Authority to learn more about its Bill-C18-like legislation implementation in Australia, so the estimates may have been based on Australian data.

Google’s news blocking test in Canada illustrates that the reality of Bill C-18 may go against its very purpose by digital platforms to link to news materials. This will not only limit access to online news content in Canada, but, more significantly, will further drive the losses suffered by Canada’s news media industry. , more than 450 news outlets in Canada have closed, with 64 closures in the past two years. With the second reading of Bill C-18 now in progress at the Senate, Parliament may need to reconsider its legislative approach to avoid further backlash from Google and Meta.

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Emily Xiang is an IPilogue Writer, a Senior Fellow with the IP Innovation Clinic, and a 3L JD Candidate at Osgoode Hall Law School.

What do a company in the business of mining and selling construction equipment, and an athletic-wear and sporting accessories brand, have in common? Apparently, the cat has been let out of the bag on this one. On January 10th, 2023, the Federal Court of Appeal released one of its first trademark of the year in .The Federal Court of Appeal held in favour of the construction machinery and equipment company over Puma’s use of the trademark PROCAT in association with footwear and headgear.

Puma first applied for the trademark PROCAT in 2012 for its sub-brand of youth sporting accessories. Caterpillar shortly opposed the application, asserting that, inter alia, the PROCAT mark was confusing with Caterpillar’s own CAT & Triangle Design [shown below]. Caterpillar’s CAT & Triangle Design was also registered in association with footwear and headgear. Specifically, the design was related to a line of work and sport footwear that the company had been operating in Canada since 1994. When the matter was brought before the , the hearing officer held that there was no reasonable likelihood of confusion between the marks. The officer explained that Caterpillar had failed to show that they possessed sufficient control over the character or quality of the goods sold in association with the CAT & Triangle Design through its licensees.

On , Caterpillar submitted new evidence in order to demonstrate requisite control and that it had accrued benefit from its licensees’ use of its marks. The court found the new evidence ��to be material. Moving on to the likelihood of confusion analysis, the court agreed with the hearing officer that the two marks were indeed similar in appearance and sound due to the word “CAT.” But the court also found Puma’s prefix “pro” to be suggestive or laudatory of the company’s goods. Therefore, the prefix was not enough to distinguish it from Caterpillar’s CAT. Puma had also submitted 13 other trademarks to evidence that the “CAT” element had little distinctiveness in the marketplace and should therefore be subject to a smaller ambit of protection. When elements appear over and over again in trade, is generally acceptable in order to allow for fair competition. However, the court in this case found Puma’s evidence to be insufficient in demonstrating the state of the register. The Federal Court therefore overturned the decision of the hearing officer and found that there indeed would be a reasonable likelihood of confusion between the two CATs.��

Unfortunately for the sporting brand, the court of appeal did not have much to say by way of correction either. In appealing the decision to the , Puma argued that the FC judge had erred in her findings. In Puma’s view, the FC judge had failed to consider each of the marks as a whole, and contended that it would be impossible for a consumer that was not “” to be confused as to the source of the two companies’ respectively marked goods. The sporting brand also tried to rely on its other cat-nominative trademarks, such as its better-known “jumping cat” design, as evidence of brand recognition, though this was still insufficient to sway the courts.��

The Federal Court of Appeal was therefore unable to find any palpable or overriding error in the FC judge’s decision. For Puma, its with regards to its use of PROCAT in association with footwear and headgear beyond a trivial level proved detrimentally determinative. Ultimately, Puma’s evidence and arguments were not enough to go up against Caterpillar’s prior registration and surprisingly long-standing presence in the Canadian market.

The post ‘It’s Raining Cats and Caterpillars!: How a Lack of Evidence Killed the CAT’ appeared first on IPOsgoode.

Anita Gogia is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On November 2, 2022, in the case of (“Bhagwani”), the Ontario Superior Court of Justice upheld trademark principles which state that an enforceable right does not exist on the mere filing of a trademark application absent use of the mark.

In Bhagwani, the divisional court an injunction prohibiting Bhagwani from using “Bombay Frankie” in any restaurant they operate. The motion judge had to 2788610 Ontario Inc. because it was the first to file a trademark application for “Bombay Frankies” despite not having yet used the mark. The divisional court reversed this decision and held that an applicant cannot sue for trademark infringement until the . If they are to sue for passing off when registration is pending, they cannot do so successfully unless the mark has developed goodwill.

2788610 Ontario Inc. applied to register the mark in October 2020 but that application had yet to be examined, approved, or advertised. It was in the process of developing a franchise system of restaurants but had not opened or advertised any restaurant or obtained any reputation associated with the mark. In contrast, Bhagwani had on various menu items and to register “Bombay Frankie” in 2021. They also opened two restaurants with the “Bombay Frankie” name.

In granting the injunction, the motion judge applied the :

• First, a serious issue to be tried is present. The issue is whether 2788610 Ontario Inc.’s entitlement to the trademark manifests on the application date or registration date. The judge accepted that this is a novel claim and to establish a “serious issue to be tried”.
• Second, the judge held that 2788610 Ontario Inc. would suffer irreparable harm that is not compensable without the injunction. The judge concluded that Bhagwani would have a significant advantage if they continued operation with the marks in issue on their restaurants.
• Third, the balance of convenience favoured the granting of an injunction.

The divisional court reviewed the motion judge's decision on a standard of correctness because it is an error in principle attributable to the application of an . The divisional court applied the test in accordance with established trademark principles:

• First, in finding a serious issue to be tried, the motion judge incorrectly concluded that 2788610 Ontario Inc. had a right to the marks by virtue of the trademark application or that its trademark would be registered (both errors of law). Per , a trademark must be registered to give rise to a cause of action. There is no certainty that 2788610 Ontario Inc.’s application will be granted. In considering a possibility of a passing off claim, the court upheld that to establish passing-off per , 2788610 Ontario Inc. must have shown existing goodwill. While 2788610 Ontario Inc. was engaged in start-up activities, those per the jurisprudence. In this analysis, the court notably recognized that goodwill could exist from the perspective of potential franchisees (but was not established on the facts of this case).
• Second, the court held that the motion judge made a by ruling that 2788610 Ontario Inc. would suffer irreparable harm without an injunction because the loss of goodwill , only established by clear evidence. The cause of action protects existing, not potential goodwill. The court cited , noting that confusion does not per se result in “irreparable harm not compensable in damages.” Irreparable harm is a high bar.
• Third, although the divisional court did not consider the balance of convenience, the court did note that such consideration may favour Bhagwani, who had to remove signs, website content, and social media accounts bearing the “Bombay Frankie” name.

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