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Jasmine Yu is a Senior Editor and a 2L JD/MBA Candidate at the University of Toronto.

Nancy Chen is an IPilogue Writer and a 2L JD/MBA Candidate at the University of Toronto.

On November 9, IP Osgoode, Reichman University and Microsoft hosted the first in-person Bracing for Impact Conference since 2019. The conference focused on “The Future of AI for Society.” While AI is full of exciting possibilities, real-world application and integration are relatively nascent. Implementing AI technology in society requires complex interdisciplinary engagement between engineers, social scientists, application area experts, policymakers, users, and impacted communities. At the conference, an esteemed lineup of speakers across disciplines discussed the forms that interdisciplinary collaboration could take and how AI can help shape a more just, equitable, healthy, and sustainable future.

sought to contextualize the promise of AI for the future of urban development and was chaired by Hon. Maurizio Bevilacqua, the Mayor of Vaughan. As an elected Mayor, Hon. Bevilacqua put this panel in the context of AI serving the purpose of improving lives — a goal of the of which he and Professor Pina D’Agostino, Founder & Director of IP Osgoode and Bracing for Impact Conference Chair, were a part. The task force identified Smart City opportunities for improving the city through innovation, communication technology, and mobility management — using initiatives to improve road safety, reduce traffic congestion, and encourage residents to participate in active transportation.

Professor Zachary Spicer: Smart Cities – A Unique Challenge

is an Associate Professor at the School of Public Policy and Administration at �첥��Ƶ. He examined Municipal governments’ capacity for Smart City Development and AI adoption, focusing on the constraints of resources, scale, and provincial legislation.

Professor Spicer viewed that while Smart City technology can provide various benefits, such as the opportunity to maximize budgets and create efficiencies, they also bring a host of novel challenges. For instance, in the context of applying AI to transportation, Professor Spicer emphasized the importance of considering the potential skills and engagement gaps when procuring Smart City technology within municipalities in Canada. We must ensure that the relevant personnel must have the necessary understanding, skills and resources related to AI technology and data governance.

Dr. Vera Roberts: Marginalized Communities and AI

is the Senior Manager of Research, Consulting and Projects at the Inclusive Design Research Centre (IDRC) of OCAD University. She advocated for people with disabilities, identifying that this marginalized community is often excluded from the AI system development process and therefore inadequately represented.��

Dr. Roberts explained that because AI systems are machines, we tend to view these systems as operating on pure logic and immune to human biases. However, she stresses that we must keep in mind that AI systems learn from human data, which can be flawed. We should shift our focus to examining biases within the actual input data training AI systems and whether they accurately represent marginalized groups. Currently, AI systems are largely trained on data from “normal people,” limiting their applicability to people with disabilities. When data is included on people with disabilities, Dr. Roberts comments that it usually only includes the fact that they are different from the standard population. The IDRC has several ongoing projects, such as , targeting these issues and creating more inclusive AI systems.��

Mr. Keith Hemingway: Bringing AI to Utilities

Keith Hemingway is the Head of Advanced Planning at the In his opinion, the biggest change in the AI space right now is the increased accessibility to data that was previously protected and hidden away. As the utilities industry moves towards e-mobility and the electrification of transit and heating, companies need to turn towards AI for new schemes and frameworks to implement these changes.��

However, the use of AI raises new issues concerning data privacy. For example, to increase efficiency in resolving outages, Mr. Hemingway brings up the possibility of using drones to visually scan pole lines to identify the outage-causing fault. In this scenario, there runs a risk of capturing more footage than necessary – instead of just seeing the faulty insulator, the drone might accidentally capture someone’s backyard, thus infringing that individual’s privacy. Ultimately, it boils down to what exactly constitutes data and how utility companies can balance using AI to improve electrical systems for the public good while respecting data privacy boundaries.��

Professor Guy Seidman: Bracing for the Impact of Autonomous Vehicles

is a Professor of Law at the Harry Radzyner Law School of Reichman University. He was extremely passionate about the impending arrival of Autonomous Vehicles (AVs), their impacts on our daily lives, and their potential legal ramifications. Professor Seidman recognized that mass electric AV adoption can have benefits such as traffic accident reduction, improved air quality, and freed up urban space from a reduced need for parking spaces (assuming that AVs need not be parked). However, Professor Seidman also identified several barriers to mass AV adoption, including technological feasibility and transition difficulties, wherein different demographics have a differing willingness to trust AVs — the more educated tend to be more accepting of AVs.

Professor Seidman does not anticipate complex legal solutions to questions of accident liability when AVs are involved. Rather, he was optimistic that tort and insurance law will naturally evolve to deal with such issues. He viewed that the more significant discussions revolve around public policy around social and economic ramifications of AV adoption. Finally, Professor Seidman also suggested that we should hesitate to eliminate Traffic Law entirely as AVs become more prevalent, as it is arguably the widest form of legal education. Convincingly, Professor Seidman ended the discussion by concluding that these impending issues must be considered now, so that we are bracing for the impact of incoming AI innovation.

The post IP Osgoode presents: AI for the Future of Urban Development – Smart Cities, Transportation and Sustainability (Panel 1 of the Bracing for Impact Conference) appeared first on IPOsgoode.

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Jasmine Yu is an IPilogue Writer and a 1L JD Candidate at the University of Toronto Faculty of Law.

All that glitters is not gold, but trade secrets in the sparkling world of luxury jewellery might just be worth the gold and diamonds they sell. On February 28, French luxury jeweller Cartier its competitor, Tiffany & Co. (“Tiffany”), for stealing trade secrets related to its from a former Cartier employee, Megan Marino.

Cartier’s Claims

Tiffany’s high jewelry unit was in the midst of a restructuring following several resignations. Cartier claims that their competitor’s management used “quick money and title advancement” to lure Marino away in December 2021. Further, Cartier also asserts that immediately upon hiring her, Tiffany’s President for the Americas met with Marino for the express purpose of obtaining information about Cartier. This act disregarded Marino’s confidentiality and non-solicitation contractual obligations to Cartier.

Marino, ��a named co-defendant, started working at Cartier in August 2013, and most recently served as Assistant Manager for Merchandising, Jewelry. Cartier claims that upon her hiring at Tiffany in December 2021, Marino forwarded files containing “sensitive and valuable information” related to Cartier’s high jewelry business to her personal email. These files could purportedly “allow a sophisticated competitor to replicate key strategies” and to “reverse engineer how Cartier allocates, merchandises, and prices its High Jewelry stock.” Cartier claims that this was a breach of her employment agreement, as she was to return “any and all documents” containing “Confidential Information and Trade Secrets” that she obtained in connection with her employment.

The Lawsuit

In the wake of Cartier’s repeated written notices, Tiffany fired Marino for “failing to disclose her misconduct” in February 2022. The corporation did not take any action against upper-level management, who, according to Cartier, “repeatedly and knowingly solicited and received trade secrets” from Marino and tacitly approved of Marino’s breaches of her legal obligations to Cartier.

As Tiffany continues its use of Cartier’s confidential information, such as through using such information in its internal business presentations, Cartier brings this suit. Cartier is seeking injunctive relief and damages for Tiffany’s “deliberate scheming to misappropriate and convert Cartier’s highly confidential business information to unfairly compete with Cartier.”

The Trade Secret Claim

To succeed in its trade secret claim, Cartier will need to :

• The information is in fact, secret — that it is not generally known or readily ascertainable to competitors, and confers to Cartier a competitive advantage,
• Cartier has undertaken reasonable efforts to maintain its secrecy, and
• Tiffany & Co “misappropriated” the information

Cartier gains a strong position in this case from the evidence of emails and text messages between Tiffany’s management and Marino, as well as their outreach to current Cartier employees for information. Nevertheless, Tiffany may have some strong arguments as well. For instance, to the third requirement, Tiffany may argue that Cartier did not make reasonable efforts to maintain its secrecy. What is “reasonable” is typically a cost-benefit analysis. Marino, a lower-level employee who was not directly involved in Cartier High Jewelry, could access allegedly valuable, sensitive, and restricted information.

If they acquired the trade secret by improper means or a breach of confidence, Tiffany can be considered to have committed “misappropriation”. Tiffany may be in an even stronger position if they can establish that they somehow obtained the trade secrets lawfully — through means such as independent discovery or reverse engineering.

We should look forward to seeing the Court’s take on what constitutes “reasonable efforts” to maintain the secrecy of electronic documents in the age of Zoom.

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Jasmine Yu is an��IPilogue��Writer and a��1L JD Candidate at the University of Toronto.

This article is part of a series covering the 5th Annual IP Data & Research Conference, hosted by the Canadian Intellectual Property Office and the Centre for International Governance Innovation.

The sixth session of the 5^th Annual IP Data & Research Conference, hosted by the Canadian Intellectual Property Office (“CIPO”) and the Centre for International Governance Innovation (“CIGI”), centered around IP, data, and digital platform governance. The two-part session was moderated by Michael Falk (director of the Office of the Chief Economist at IP Australia). It kicked off with a presentation on standards used in data ecosystems, followed by a panel discussion on the value of data and the processes involved in building collaborative ecosystems.

Falk’s opening remarks set the stage for this truly enlightening session. Over the past couple of years, our reliance on digital platforms has greatly increased, transforming how we do business and conduct our lives. This revolution has made data ecosystems and international standards all the more important.

Part I: Presentation

The first presentation was delivered by Sean Martineau (acting director and research economist at the CIPO) and Keith Jansa (executive director of the CIO Strategy Council).

They first highlighted several trends in intellectual property:

• Intangible assets’ growing importance
• Increased IP filings within the past two decades, both internationally and in Canada
• Growth in standard essential patents (“SEPs”) across the world, by country, and by individual standard setting organizations (“SSOs”)

Moving into a discussion on standards, they noted that standards establish accepted practices, technical requirements and, at times, modernize public policy. It is fascinating how standards are so integrated with our daily lives. The device you are reading this article on interacts with multiple technologies, implicating hundreds of SEPs! Some organization collects profits from licensing, and others to write cheques as cost to market each time that you use your device!

Jansa emphasized the importance of recognizing standards’ significance, the levers and process of standard development, and the impact that standards may have on advancing innovation. ��

Part II: Panel

��The subsequent three-person panel consisted of Evegueni Loukipoudis (strategic advisor at Digital Technology Supercluster), Peter Cowan (co-founder, director, and CEO advisor at Innovation Asset Collective, and principle consultant at Northworks IP), and Karima Bawa (strategic advisor on IP at Digital Technology Supercluster and senior fellow at the CIGI).

Loukipoudis kickstarted the panel with a discussion on the value of data, which he noted depends at least partly on who the user is, what they know about the data, and what they can do with it.

Cowan, on the other hand, discussed the importance of institutions having data strategy and proper infrastructure in place to collect, store, process, and use data properly. He also expressed concern for the inadequate literacy on data strategy in Canada.

Bawa focused largely on the legal aspect of data use. Data has become increasingly commercialized, with more entities entering into data-sharing arrangements to yield value out of data. She advised (informally!) parties in data-sharing arrangements to be aware of considerations such as the rights that stakeholders have over the data, regulatory compliance, management of cyber-attacks with limiting liability clauses, and how the data is accessed, stored, and guarded. Bawa also noted that it is wise to be circumspect with who you share data with, and how you share it.

��Conclusion

As the space-time continuum continues to shrink in our rapidly evolving world, data, standards, and privacy become even more important. The sixth session of the 5^th Annual IP Data & Research Conference rounded off a day of excellent presentations and discussions.

For start-ups, aspiring IP specialists, or those simply interested in IP strategy, check out this by CIGI: the CIGI Massive Open Online Course (MOOC) on Foundations of IP Strategy, co-created by Karima Bawa.

If you missed the conference, be sure to take a look at the materials shared by the presenters (also available in French).

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Jasmine Yu is an��IPilogue��Writer and a��1L JD Candidate at the University of Toronto.

��

After numerous delays over two years, amendments to the Patented Medicines Regulations, which governs Canada’s Patented Medicine Prices Review Board (), is finally set to come into force this year, on — at least for now.

Who is the Patented Medicine Prices Review Board?

The PMPRB is a Canadian that regulates the prices of patented pharmaceuticals to avoid excessive pharmaceutical prices. The board’s objective is to balance encouraging pharmaceutical research and development (R&D) investment with the public health interest of reducing pharmaceutical prices for consumers.

The PMPRB derives its legal authority partly from the , which specifies the information and documents patentees must provide to the Board, price requirements for drugs sold in Canada, and more.

Why Amend?

The PMPRB saw it fit to introduce changes to its legal framework because it was under the current scheme — Canadian patented drug prices were the third highest globally, while pharmaceutical R&D investment has declined.

The Amendments

The PMPRB first published the amendments on . The first substantive revision to the Regulations since the Board’s establishment in 1987, it will bring major changes to the PMPRB’s current legal framework.

There are :

First, the amendments added three new price regulatory factors to consider whether a patented drug’s price is excessive.

Second, the amendments updated the list of comparator countries, whose drug prices serve as a “benchmark” to establish the range of prices that the pharmaceutical companies find acceptable for their patented medicines. According to the PMPRB, the updated countries have similar consumer protection policies, economic wealth, and marketed medications as Canada. The United States, for example, was removed for having vastly different consumer protection priorities — its drug prices are 247% higher than Canada’s.

Third, there were changes in patentees’ pricing and sales reporting requirements. For instance, the reporting requirement was reduced for medicines at a low risk of excessive pricing, such as veterinary drugs and generics.��

The amendments, once in effect, will apply to all drugs issued a drug identification number (DIN) on or after the amendments’ publication — August 21, 2019. Those that received a DIN before this date must still comply with certain other provisions.

A double-edged sword?

The PMPRB views that these amendments will have a and decrease total spending on patented medicines by 5.8% over the next 10 years. These changes are perhaps much needed, as Canada is the only developed country in the world with universal healthcare that . Meanwhile, Canadians pay the highest price for generic drugs in the world and the second-highest prices per capita for prescription drugs — after the US. en Canadians cannot afford their prescription drugs.��

However, there are also opposing voices. Lobby groups, such as , argue that these amendments will have significant negative impacts R&D investment in Canada and on the number of new drugs available to Canadians and on R&D investment in Canada.

IMC and several Canadian pharmaceutical companies brought a judicial review application to challenge numerous provisions. The Federal Court of Canada, in Innovative Medicines Canada v Canada, , struck down subsection 3(4) of the amendments as it was ultra vires the . In a separate case, the Quebec Superior Court declared section 4(4) invalid and unconstitutional.[1]

A group of physicians also voiced their opposition in an . Their arguments mirror that of IMC: the proposed regulations will make Canada an unattractive market for companies launching new drugs, resulting in medications that could alleviate suffering being denied access to Canadians.

Conclusion

Much like how the original intentions of the PMPRB did not actualize into tangible results, and hindsight revealed flaws in its original policy, the actual consequences of these new amendments may not surface immediately. Canadian Pharmacare policy certainly seems to require an iterative process, as numerous stakeholders and market factors are at play. We perhaps need to examine the faults in Canada’s current patchwork system of private and public insurance plans for potential solutions — to strike a balance between affordable medicine and a vibrant R&D environment.

[1] Merck et al, c Le Procureur Général du Canada,��Québec Superior Court File No. 500-17-109270-192.

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Jasmine Yu is an IPilogue Writer and a 1L JD Candidate at the University of Toronto.

The Hermès Birkin is undoubtedly among the most iconic bags in history. Most of us can recall Samantha from Sex and the City being told: “it’s not a Bag, it’s a Birkin.” The Birkin has become the ultimate status symbol: its limited production makes it incredibly . The bag is immediately recognizable due to its timeless silhouette, features in TV shows and movies, and popularity with .��

The Birkin’s distinctive shape has acquired a secondary meaning, such that its trade dress has a with the US Patent & Trademark Office. The Birkin’s hefty price tag — a Diamond Himalaya Birkin for over $400,000 in 2017 — has made it a . Hermès is embroiled in constant defending the Birkin against trademark infringement and passing-off.

Recently, Hermès has tested out the scope of their intellectual property rights in the metaverse. On January 14, 2022, Hermès a trademark infringement and dilution lawsuit against Mason Rothschild, the designer of MetaBirkin Non-Fungible Tokens (NFTs), a collection of 100 fur-covered Birkin-shaped bags, which launched in December 2021 on the NFT exchange platform .��

Hermès’ Action

Hermès claims that beginning on December 2, 2021, Rothschild’s advertising of his MetaBirkin NFTs infringed Hermès’ “globally recognized” “BIRKIN” trademark and Birkin bag trade dress. They claim that Rothschild’s usage of their marks was likely to cause confusion in the minds of the purchasing public and create a false impression that Rothchild’s NFTs were authorized, sponsored, or approved by Hermès.��

Hermès claims trademark infringement, false designation of origin, and trademark dilution. They seek monetary damages, an injunction to bar the further use of Hermès’ marks, a transfer of Rothschild’s metabirkins.com domain, and delivery of all unauthorized products and advertisements.��

On December 16th, 2021, Hermès sent a cease-and-desist letter to both OpenSea and Rothschild, notifying them of the “blatant violation of intellectual property.” While OpenSea, the NFT exchange platform, removed the NFTs, Rothschild still advertises and offers his NFTs. However, Rothschild has since added disclaimers on his website, stating “We are not affiliated, associated, authorized, endorsed by, or connected with HERMÈS,” and provides a link to the official HERMÈS . Hermès notes the absence of these disclaimers from all other channels that sell MetaBirkins, creating confusion among consumers.��

Trademark Protection in the Metaverse��

Rothschild addressed the cease-and-desist letter in an Instagram , claiming that in creating��MetaBirkin NFTs, he “re-interpreted the form, materiality, and name of a known cultural touchpoint” and that selling his MetaBirkin NFTs was “akin to selling them as physical art prints.”

Hermès, however, states that MetaBirkin NFTs’ success undoubtedly arises from the “confusing and dilutive use” of their trademark. MetaBirkin NFTs were even described as a “tribute to Hermès’ most famous handbag, the Birkin,” in its initial offering on OpenSea. Citing one commentator, Hermès claimed that but for the NFT being called a Birkin, Rothschild’s NFTs would not get any attention.

Is this Fair Use?

Several barriers may preclude Rothschild from successfully claiming fair use. His extensive use of Hermès’s trademarks — i.e., the name “MetaBirkin,” the metabirkins.com domain, the hashtags #MetaBirkins and #NotYourMothersBirkin — is likely commercial in nature, which conflicts with fair use claims.

Fair use also does not provide protection when the alleged infringer used the mark as a trademark of their own, which Rothschild has done by repeatedly complaining of ‘counterfeited’ or ‘fake’ MetaBirkins on NFT exchange platforms.��

In support of Hermès’ contention of commercial use, the 100 MetaBirkin NFTs for $42,000 initially, and have garnered re-sales of $1.2 million, of which, Rothschild is entitled to 7.5%. Rothschild has already earned over $120,000.��

Future of Fashion in the Metaverse

While trademark law has well been established for luxury fashion, the metaverse complicates existing law. This legal battle has raised the novel issue of whether Hermès’ trademarks extend to digital content. Other big-name brands are testing the waters of the metaverse, such as .

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