Tuesday, August 20, 2013

Apps for Aging Lawyers: Prostheses for the Mind?


This article was originally published in the American Bar Association's Solo, Small Firm and General Practice Division's Summer 2013 GPSolo Magazine, Vol. 30, No. 4
Nathaly J. Vermette (nathalyj.vermette@andrewsrobichaud.com) is a partner in Andrews Robichaud, a Canadian business and intellectual property law firm, and is president of emAPPetizer Inc. (emappetizer.com), which builds mobile productivity apps.

In the western world, where the average age of the population has steadily increased with advances in science, it stands to reason that the retirement age has also risen. Now that we are living longer, we fear that we may run out of money if we stop generating income too early.

But the aging workforce has also seen a rise in health-related issues. One such issue could be termed “watchamacallitism” or, more formally, mild cognitive impairment (MCI). We all know someone—a family member, a friend, or a colleague—either experiencing MCI or providing care to someone with the condition. In the past, MCI was easier to keep hush-hush, but with the increased number of people affected and remaining active in the workforce, it has become difficult to ignore.

MCI is a progressive disability that affects certain memory functions. It is a loss of the ability to access the memory at will. Some of the more common signs of impairment are searching for words or names, repeating oneself, and difficulty organizing tasks and thoughts. MCI is not a loss of intelligence, however. Access to long-term memory often stays intact while the short-term memory seems to be the most affected. The mind can be clouded one day and crystal clear the next. Although different from person to person, MCI is a condition that can, for most, be stabilized, if acknowledged and treated early. As such, it is an affliction to the brain, a disability.

Aging lawyers are not immune to MCI, and because of their responsibilities regarding their clients, the consequences of cognitive impairment can be severe. This article will focus on the attorney experiencing MCI who wishes to continue practicing law. A range of technological tools—primarily mobile apps—are presented below, along with suggestions for creating a support network that will help integrate these tools into a lawyer’s practice.

Lawyers and MCI

Treatment of MCI, paired with a structured work environment, can enable an affected lawyer to remain engaged in normal activities and continue to provide meaningful contributions for a while longer, albeit with some adjustments and support. This being said, we can never lose sight of the business side of the equation.
Being afflicted with MCI makes key concerns out of managing client relations and services, human resources, insurance coverage, and professional liability for errors and omissions. A law firm may want continued access to the expertise, client base, and contacts of this experienced professional, but not at any cost.

It is a balancing act between providing high-quality services to clients, generating revenue, and protecting the firm from liability for errors and omissions on the one hand, and maintaining respect, dignity, and an effective and engaged workforce on the other. In addition, issues such as contractual obligations, the right to privacy, the preservation of reputation, and other basic human rights need to be considered carefully.

To assist in this balancing act, the firm needs to arm itself with information and tools to limit its exposure as the impairment progresses over time. More structure and supervision may be required to continue to tap into a lawyer’s wealth of knowledge, while care must be taken to preserve a positive reward-effort ratio or return on investment (ROI).

To begin the balancing act, the first step is to notice and then acknowledge that there is indeed an issue. This is easier to accomplish when an affected lawyer works in a large or even a small firm and is surrounded by colleagues and assistants who may notice certain changes.

However, in a solo practice, where there may be little or no interaction with team members or an assistant, this may prove more difficult. In such cases, it may be family members who first notice issues. In other cases, it may be opposing counsel, or worst, a client who notices a problem and may suffer the consequences. In some cases, it may even be the affected lawyer who notices that he or she is taking much more time to accomplish tasks.

As lawyers, we are all well endowed with “personality,” and in some cases, it may be painful to admit that there is indeed a problem. Care and firm persuasion must be exercised to deal with the uniqueness of each case. For some, the solution is to retire, while for others, the benefits of continuing to practice may outweigh the risks, at least for a while.

Building the Right Support Structure

Before implementing technology tools to help a lawyer with MCI, a support structure must first be put in place to ensure the lawyer can continue to practice effectively and integrate these news tools into that law practice.

The concept of “practice circles” or teams is not new in medium to large firms. Therefore the shift to a concept of “practice support circles” (PSC) should be relatively easy when lawyers, paralegals, assistants, and the firm compliance officer are willing to fully cooperate and be flexible. It also requires the sensitizing and understanding of the firm and its members as a whole.

For small and solo practices, however, the concept may be newer and therefore may require some changes in work methodology. This may mean teaming up with a younger lawyer or adding a personal assistant to keep the practice running smoothly.

Once created, the PSC provides a more structured and conducive environment for the afflicted lawyer to work, where others assist with the short-term memory disability, and the firm and clients continue to benefit from the intelligence and experience senior lawyers offer. Once the support structure is in place, the technological aids can be introduced.

Integrating the Right Technology

In the past, accepting and adopting new technology has proven challenging for some older individuals because the technology has not always been simple and accessible. There has, however, been an age shift in the adoption of technology. Today’s aging population is increasingly technology savvy. According to a report from Nielsen, “Americans between the ages of 55 and 64 are adopting smartphones at a faster rate than any other age group. . . ” (tinyurl.com/d3safcf), and mobile devices are now commonplace among seniors. Lawyers of all ages are beginning to carry tablets or other mobile devices inside the courtroom or to meetings instead of lugging files and books. The most probable reason behind this mass adoption lies in the simplicity, ease of use, and portability of this new technology.
These devices—more intuitive and accessible than ever before—can be readily adapted to become extensions of our minds. This is done by creating custom interfaces or apps to exploit specific device functionalities and to connect seamlessly to databases or plug into existing systems, as required. Most firms now have practice and file management and accounting software or systems in place, and some of these systems provide mobile access through tablets or smartphones. (Database security and confidentiality must be carefully considered when allowing mobile access to such resources.)

So how can aging lawyers use this technology to stay in the workplace longer? And what is the “right” technology to help a lawyer with MCI? The answers will differ depending on the type of practice and work method. As a general rule, however, look for simple tools with “clean” interfaces that require little or no technical abilities and that (1) assist the affected lawyer in the performance of everyday tasks, (2) facilitate supervision without being too invasive, and (3) do not add to the already heavy workloads of team members.
Several mobile applications perform one function or another, such as:

  • Daily tasks or “to do” lists;
  • Dictation application that auto-type or record, then send an e-mail directly to an assistant;
  • Shared calendars that automatically populate daily “to do” lists based on deadlines;
  • Reminders, prompts, and timed calendar alerts;
  • Practice guidelines and checklists;
  • Private and secure messaging systems;
  • Time keeping;
  • Accounting;
  • Direct videoconferencing with pre-established individuals or groups;
  • GPS and location assistance;
  • Project/file management systems; and
  • Note taking.
The keys to using technology to assist people affected with MCI are early adoption of the technology and minimal interaction between the affected member who needs to perform the task and the rest of the team. Keeping technology simple and seamless allows both the affected person and the surrounding support circle to focus on the business, not the technology.

Challenges to Introducing New Technology

There are several challenges that need to be overcome when providing new tools to an aging workforce. One such challenge is overcoming the fear of technology itself. As noted above, this factor is fading quickly with the high adoption level of technology by seniors, but it still needs to be considered as not everyone is interested in the newest and latest gadget. The adage “if it ain’t broke, don’t fix it” has much merit; however, when integrating a PSC, technology is indeed the way to go.

Another challenge when introducing new technology is finding a way to package the complex and sometimes numerous software functionalities into tools that are simple to use with little or no technical acuity.

In order to succeed, the technology must mimic existing and well-established work methods and habits, allowing for its adoption without having to learn a new skill. For example, adding or crossing off an item from an electronic to do list must be similar to the pen-and-paper version. The obvious advantage in using electronic to do lists is that the practice circle or manager can monitor the progress on any project timeline.

We have found, however, that few currently available apps consolidate several functions into one user-friendly program. There still is a need for integrating the various components and allowing users to pick and choose the functionalities they need and want in one tool that is simple to use and suits their practice style.

Simple interfaces can be custom designed to consolidate, converge, and “plug into” existing systems to better exploit them and assist someone with MCI or someone with an aversion to technology.

One mobile application that can help with such consolidation is VITACARE, developed by emAPPetizer Inc. (emappetizer.com), of which I am president. This app was designed to assist seniors at home on a personal level by creating a “circle of care” to help manage day-to-day tasks and events. Circle members can input information into the app, helping to remind the user of the various things that need to get done during the day. VITACARE is one of the first apps to consolidate such functions as (1) calendaring, (2) generating daily to do lists from the calendar or by adding or having circle members add items, (3) creating reminders and alerting circle members when a task has not been completed, (4) messaging, and (5) managing documents and photos. VITACARE is currently being adapted to assist aging individuals in the workplace in various disciplines; the components will be customized and the interface adapted to work with existing databases and work methods.

Mobile Apps to Consider

The mobile app world is evolving very quickly with new apps coming onto the market every day. In addition, existing software platforms are adapting their products and services to the mobile shift. The following list of apps aimed at the general population (and not specifically at seniors or lawyers for that matter) does not purport to be exhaustive, but aims rather to be informative in providing a small snapshot of what may be useful to attorneys in their maturing practice. Unless noted below, they are all available free of charge for one (sometimes both) of the major mobile platforms: Apple’s iOS (from the iTunes App Store, apple.com) and Android (from the Google Play Store, play.google.com).
Dragon Dictation (iOS). This is an excellent app for short memos, letter, text messages, or e-mails. Simply speak, and watch your message be typed.
Listnote Speech/Text Notepad (Android). This app is similar to Dragon Diction but is for the Android operating system.
Siri (iOS). This built-in Apple feature can be used for dictation and also to ask questions and conduct searches. The app is limited to Apple phones and tablets: iPhones (4S and later), iPads (third generation and later), and iPod touches (fifth generation and later).
Voice Search (Android). This app is similar to Siri but is compatible with Android smartphones and tablets.
Skype (iOS and Android). This is a very popular Internet calling service that allows chat, telephone, and video telephone calls. Several other free phone apps exist as well, such as Viber; Tango Text, Voice, and Video; and Truphone, to name but a few. All are available on both iOS and Android.
FaceTime (iOS). This is a simple-to-use videoconference app for iPhones, iPads, and iPod touches.
Find Your Car with AR: Augmented Car Finder (iOS). This is a simple and fast parking application that helps remind you where you left your car. Just park your car and press the “I parked here” button. When it’s time to find your car, just open the app and follow the arrows.
MyCar Locator (Android). Similar to the above, but for Android.
e-Readers. Kindle, Kobo, iBooks, and other e-readers are wonderful as they allow for easy access to practically any book on the market. Most e-readers have published mobile apps for a variety of smartphones and tablets. For the aging population, e-readers are particularly helpful as they allow the user to adjust (i.e., enlarge) the type to any size that is comfortable.
VizWiz (iOS). This is an iPhone application for partially sighted people. The user takes a picture with the iPhone, then speaks a question and receives multiple spoken answers.
TalkBack (Android). This application, part of Google’s Android Accessibility Service, was developed to assist the visually impaired in using their cell phones. The app also reads text out loud and carefully evaluates and speaks out users’ movements.
Audiotorium Class & Meeting Notes ($5.99; iOS). This is a note-taking app for the iPad and is a good way to record, organize, review, and share your audio and text notes from your meetings and conferences.
Other noteworthy note-taking apps include Google Keep (Android), OneNote (iOS and Android), and Evernote (iOS and Android).
mSecure ($9.99; iOS and Android). With so many user names and passwords to remember, this app offers a convenient solution to safeguard your important information. Ultra-secure encryption is used to protect account numbers, user names, passwords, and more.

For more suggestions. A more complete listing of mobile apps for lawyers is found at a website and blog called “Attorney at Work” (tinyurl.com/c8f7tc6), which provides law firm management tips and suggestions. It also reviews apps for lawyers that cover everything from legal documentation apps; file, evidence, and time management apps; productivity apps; and even jury selection apps.

Lend a Helping (Prosthetic) Hand

Given a choice between creating a structured work environment or having to shut down a thriving practice, most lawyers with MCI would probably opt for the structured work environment, especially if simple-to-use technology is readily available and discreet for all involved.

We are seeing incredible technological advances in prostheses that replace lost limbs and allow disabled people to walk and run with the able-bodied and attain incredible results. Why then would we not do the same for our minds and the wealth of knowledge and experience they contain? In many cases, technology can provide assistance in overcoming such disabilities by prompting, reminding, and providing access to help when required.

Everyday technology is evolving and being introduced at a pace never before seen. We are currently at the crossroads where new mobile technology is meeting productivity and connectivity. We need to start tapping into such technologies to empower older lawyer who want to stay engaged in the legal world but simply need a helping hand.

Friday, December 28, 2012

Believe  It Or Not, Plant Breeders Have Rights Too!

By: Nathaly J. Vermette and Juan Alberto Diaz-Wiechers

With science and technology at the forefront of our lives, chances are that in the course of your practice a client has asked you about intellectual property (IP) protection. One of the more obscure and sometimes conflicting IP rights lawyers may not know about is the plant breeder or plant variety right. Yes, plant breeders have rights too!

You may not realize it, but the little-known body of legislation addressing plant breeding plays an important role in your everyday life, from the flowers sitting in your vase to the bread, fruits, and vegetables you put on your table, the medication that helps you stay healthy—and even the fuel you pump into your car. The global expansion of agriculture has encouraged international research projects to develop new plant varieties—some for agricultural and alimentary use, some for medical and industrial use, and others simply for ornamental purposes.

Objectives of Plant Research

Consumers’ desire for more attractive, practical, and economical fruit varieties is one reason for the development of these new breeds. For example, seedless grapes or watermelons were developed simply because they are easier to consume. Other new breeds yield fruit with particular flavors, special growth patterns, or ripening characteristics that facilitate market introduction in specific seasons. Another objective of breeders is to develop crops that will adapt to unique agricultural soil and are able to survive harsh climate conditions in order to feed large populations. Other purposes for new plant breeds can be as simple as producing flowers with a distinctive color or that will flower closer to winter. Yet another reason is to increase crop yields, whether to feed the growing world population or to produce bio-fuels via genetically modified produce. The underlying objectives for plant breeding are endless.
Many research endeavors have altruistic and human welfare at their core, but the stark reality is that financial considerations make or break many projects. The process to obtain and develop plant varieties can be complex and expensive. Research and government grants, as well as funds from the private sector, are required to move plant breeding projects forward in exchange for a return on investment. Governments and other international entities have stepped in to provide researchers with intellectual property protection to give innovators and inventors market lead time, helping to recoup investments and protect breeders’ research.

Protection for New Plant Breeds

To protect research results, it is essential for scientists to secure the exclusive rights to use and market their findings in a given territory. In relation to plants, this accomplished through the registration of new plant varieties in the countries where they will be grown or marketed.
Registration of a new plant variety grants a breeder the right to exclude others from marketing and selling the new variety over a given time period (generally between 15 to 25 years, depending on the country and species), and to sue for damages in the case of infringement. In exchange for such rights, a plant’s breeders must publish the information and documentation relating to their research. Once the protection period has elapsed, the new plant variety becomes available for public use.
Because growing seasons are reversed in the northern and southern hemispheres, many enterprises choose to engage in international agricultural operations in both hemispheres to extend their growing operations year-round.
Chile boasts one of the world’s largest international gardens where many Canadian and foreign companies now cultivate plant varieties that were originally developed in similar weather conditions in the northern hemisphere. For example, fruit varieties developed in Mediterranean-like climates such as California, Spain, or Italy are known to perform well in central Chile’s climatic conditions. The same may be true for varieties developed in New Zealand, Australia, or South Africa. Foreign companies will therefore seek to protect their varieties in Chile. Conversely, Chilean companies often develop new plant varieties from original imports and may wish to protect such varieties in Chile and perhaps abroad to license for growth elsewhere.
At the other end of the spectrum, Canada offers the world gigantic and fertile planes carved out of the glacial passages of the last ice-age. Unlike Chile, Canada’s climate is not as inviting for many crops.  Notwithstanding Canada’s short growing and harvest seasons, its resourcefulness and technological advances in farming techniques have allowed this northern country to grow enough produce to become a valued player on the world’s agricultural stage. However, Canada still imports most of its produce. Therefore, contrary to Chile, plant variety protection is sought in Canada mainly to protect the commercialization and sale of a plant variety or its end products, rather than the agricultural process itself.
The United States’ agricultural productivity has more than doubled since 1948. Nearly one-half of the world’s grain exports originate in the United States, and American breeders seek plant variety protection for both the cultivating process and the end products in foreign countries.

This brief description of the very different agricultural roles played by Chile, Canada, and the United States shows that plant variety protection applies not only to the right to reproduce, develop or grow a particular variety, but also to the rights to sell such produce in a given market and to protect research.
Registration Requirements and Rights

The International Union for the Protection of New Varieties of Plants (UPOV), a United Nations organization established in 1961 with headquarters in Geneva, Switzerland, is the international body that oversees international plant breeders’ rights. UPOV consolidated its work into two different protocols (the 1978 and 1991 UPOV Conventions) that have set a framework within which member countries agree to govern plant breeders’ rights. In addition to the European Union, 63 countries subscribe to the 1978 or the 1991 UPOV Conventions.
It is important to note that, notwithstanding international treaties, national legislation grants rights only in a given national territory. Applications therefore must be filed in each country in which protection is sought. Applications filed in one country may be used, however, as a basis to claim priority for an application filed in a UPOV–member country.
Every country has its own registration requirements, procedures and rights that are graudually being harmonized as more and more countries adhere to the UPOV Conventions.  Prescribed application forms requesting detailed information, including whether or not an international priority is being claimed, and registration procedures may vary from country to country.
Generally, in order to obtain protection for plant varieties, the variety must be considered, after examination and testing, “novel,” “distinctive,” “uniform,” and “stable” to comply with internationally accepted criteria.

After a plant variety is registered, its breeder has the exclusive and enforceable right to exclude others from (1) producing the multiplying material of the variety; (2) selling, offering, or exposing that material to sale; (3) importing or exporting the material; (4) repeating the use of the new variety for the commercial production of other varieties; and (5) using ornamental plants or parts thereof that normally are not commercialized for propagation with the purpose of producing ornamental plants or cut flowers.  Such rights cover all botanic genres and species (except algae, bacteria and fungi in Canada) and in general apply to the complete plant, comprising all kinds of flowers, fruits, or seeds, or any part of the plant that can be used as multiplying material.  Developers or breeders can sue infringers to enforce their rights and recover damages.
So, the next time you bite into a luscious fruit, enjoy the scent of exotic flowers, or fill your gas tank with bio-fuel, remember, plant breeders have rights too!
For more information on and assistance with the registration of Plant Breeders’ Rights (PBR’s) we encourage you to contact a qualified and knowledgeable intellectual property attorney who can assist in the application process.

An earlier version of this article was originally published in the American Bar Association’s Tort Trial and Insurance Practice Section (TIPS) publications: VERMETTE, Nathaly J and Juan Alberto DIAZ-WIECHERS, Believe it or not, Plant Breeders Have Rights Too, ABA, TIPS, TortSource, Winter 2011, Vol. 13, No.2., and again in TIPS Intellectual Property Law Committee’s Newsletter, Spring 2011.

Nathaly may be reached at:

Andrews-Robichaud Inc.
450 rue Saint-Pierre, Suite 105
Montreal, Quebec, Canada
H2Y 2M9
Tel & Fax: (514) 499-7444


Twitter: @CanadianTMLaw
Juan Alberto may be reached at:

Vitacura 2909 Suite 902
Las Condes
Santiago, Chile
Tel. (56-2) 234-3982
Fax (56-2) 234-0290
Cel. (56-9) 84499531

Monday, August 29, 2011

The Truth About Your Cell Phone Number And The Canadian DO NOT CALL LIST

Canadian telephone numbers are public and are therefore available to telemarketing companies.

You may wish to register all of your telephone numbers or extend the expiry date (if you already registered your numbers in 2010) on the national "Do Not Call List".

HOWEVER, cellular telephone numbers, by law, are not public information.

The way the system in Canada works is that telemarketers are required to compare their telephone lists with the Do Not Call List ("DNCL"), and by law must remove all numbers that are on the DNCL. The issue is that as of yet, there have been little consequences, and the penalties issued inconsequential to large telemarketing companies. The problem is that the DNCL is a list of validated telephone numbers. If you put your cell phone number on the list, you have just validated your number, and made it available to telemarketers how must compare their lists to the DNCL. Since the consequences are not serious, it is an economically viable decision to take the risk and use the DNCL as the calling list.

If you really want to keep your cell phone numbers private DO NOT add them to the DNCL.

The DNCL can be found at: https://www.lnnte-dncl.gc.ca/insnum-regnum-eng


Les numéros de téléphone canadiens sont publics et donc disponibles aux compagnies télémercatiques.

Vous pouvez enregistrer tous vos numéros de téléphone canadiens (ou prolonger la date d'expiration d'un tel enregistrement si vous avez déjà enregistre vos numéros en 2010) sur la Liste nationale de numéros de télécommunication exclus. ("LNNTE").

PAR CONTRE, les numéros de téléphone cellulaires ne sont pas publics, de par la loi.

Le fonctionnement du système canadien requiert que les compagnies télémercatiques comparent les listes en leur possession à la LNNTE, et doivent supprimer les numéros y figurant de leur liste.

Un problème est qu'à date, il n'y a pas eu de conséquences importantes, et les amendes imposées sont minimes et ne servent pas à décourager les appels aux numéros figurants sur la LNNTE.

L'autre aspect important du problème est que la LNNTE est une liste de numéros validés. Si vous inscrivez votre numéro de téléphone cellulaire sur cette liste, vous venez de valider votre numéro et le rendre disponible aux compagnies télémercatiques lorsqu'ils comparent leurs listes à la LNNTE.

Vu que les conséquences d'un tel comportement ne sont pas encore sérieux, c'est une décision malheureusement économiquement viable d'utiliser la LNNTE contrairement à son intention originale.

Si vous voulez préserver le caractère confidentiel de votre numéro de téléphone cellulaire NE L'INSCRIVEZ pas sur la LNNTE.

La LNNTE se retrouve au : https://www.lnnte-dncl.gc.ca/insnum-regnum-fra

Friday, March 19, 2010

The Doctrine of Forum Non Conveniens: Canada and the United States Compared

I am pleased to announce the publication of a new article: "The Doctrine of Forum Non Conveniens: Canada and the United States Compared" by F. Mikis Manolis, Nathaly J. Vermette and Robert F. Hungerford published in the Federation of Defence and Corporate Counsel law journal the FDCC QUARTERLY.

Saturday, January 30, 2010

"VIVE LA DIFFÉRENCE" - The Province of Québec, the Civil Code and Trade-mark Issues – a Brief Outline of Some Differences

Québec’s legal system has a very interesting cultural and legal history in that both were heavily influenced by a combination of the French custom of written law and the British tradition of oral and case law. Originally a territory belonging to the French Crown, Québec’s local authorities adopted in 1664 the “Coutume de Paris” as the main body of law governing the French settlement of “La Nouvelle France”. These customs were complemented by local customs, canon law and royal edicts. With the British influence arriving in North America and their victory over the French in Nouvelle France, British law was imposed on the territory. However, a short time later, the British allowed the French population to carry on with their language, religion and laws for civil matters, and thus the systems of French “civil law” and British “Common Law” began to co-exist in the same territory.

The of law of La Nouvelle France (or then under its newer name of “Lower-Canada”) remained a somewhat informal body of customs until the adoption of its first official codification in 1866 under the name of the Civil Code of Lower Canada – C.c.L-C., which was influenced by the French Napoleonic Code of 1804, the Louisiana Civil Code and some British common law. The Civil Code of Lower Canada consolidated these different sources and created a body of law that was more suited to the local society. As the C.c.L-C. evolved over the years it was modified several times and influenced by various factors including new social, economic and political realities in Québec as well as globalization. The C.c.L-C. continues to evolve with the last major modification having been adopted on January 1, 1994 and set out in the new Québec Civil Code.

The Quebec civil law system is therefore based on written law. The concepts are somewhat static and cases must look to the law to interpret the rules and find a solution to the problems set before the courts. Conversely, the “Common Law” system is founded on the resolution of situations where the of rule law has always existed, but is in constant process of being “discovered”. This body of law consists of the compilation of solutions consecrated in judgements and gathered over time. It is from this constantly evolving body of law that solutions are found to resolve issues.

As the rest of the Canadian territory matured and developed its body of laws under the British traditions, Québec maintained its ties with the French civil tradition. Even as the nation of Canada was officially born in 1865 with the adoption its Constitution, the province of Québec maintained the pluralist nature of its legal system. The Canadian Constitution formalised agreements between the provinces and created a central federal system, dividing legislative powers by granting exclusive jurisdiction to the provincial authorities over various domains, most notably over civil matters. We therefore find in the province of Québec a body of civil laws governing certain aspects of the law, a body of provincial statutory provisions complimented by the civil law, and a body of federal laws steeped in English Common Law traditions.

It is not unusual therefore that a Québec court takes a different approach to the interpretation of a federal statute when the law provides little or no guidance. Since the supplemental or complimentary legislative body used to interpret federal statutes is the Québec Civil Code rather than the Common Law as in other provinces, Québec judges will turn first to the Civil code, and case law, whereas a judge in other Canadian provinces will turn to case law to assist in the interpretation.

These fundamental philosophical differences create various situations where, although the end results may be similar, the means of reaching such solutions may vary.

For example, Québec law, as it pertains to trade-marks contains a number of differences, for example, as it relates to the Common Law tort of “passing off”.

If an action were taken in a Québec provincial court, regardless whether the Canadian federal Trade-mark’s Act applies, the Québec Civil Code would find application as well as the body of procedural law based on the Québec Code of Civil Procedure.

Since the tort of “passing off” is a creature of “common law”, and does not exist in civil law, we would turn to the Québec civil code to find a “legal fit”. The remedy in Quebec law would be a concept called “concurrence déloyale”, literally translated as “unfair competition”. Care must however be taken in that it is not the common law concept of “unfair competition” but a French based civil law concept that has a wider range of remedies. It is based in the general “fault” of civil responsibility. These differences have repercussions on how a case is handled, and the possible outcome.

Another major difference with Québec law is the province’s constitutional right to protect its culture and language. To this effect, there is a statute pertaining to the French language that has impacted many marketing campaigns and trade-mark portfolio strategies.

The Charter of the French Language – Rules and Exceptions:

In the province of Québec the use of language in commerce is regulated by the Charter of the French Language (R.S.Q., c. C-11) (the “Charter”).

Section 51 of the Charter establishes the general rule with respect to product labeling stating that inscriptions on products must be in the French language:

“51. Every inscription on a product, on its container or on its wrapping, or on a document or object supplied with it, including the directions for use and the warranty certificates, must be drafted in French. This rule applies also to menus and wine lists.

Other languages.

The French inscription may be accompanied with a translation or translations, but no inscription in another language may be given greater prominence than that in French.”

1977, c. 5, s. 51; 1997, c. 24, s. 24.

There are exceptions to this rule, and of course the requisite exceptions to the exceptions.

Without going into a full analysis of this issue, suffice it to say that there exists legislation unique to the province of Québec that often requires the intervention of specialized Québec legal counsel.

Thursday, August 27, 2009

Fraudulent Trademark Registration & Renewal Notices & Solicitations

Fraudulent Trade-mark Registration Solicitations

Do not answer these solicitations and throw them away.

There exist numerous domestic and foreign enterprises that monitor the trade-mark registers for pending applications and registered trade-marks around the world and solicit business by sending invoices to trade-mark owners for poorly detailed “services”.

The problem of fraudulent solicitations has become so pervasive, that the Canadian Intellectual Property Office (CIPO) and the Madrid System for the International Registration of Marks published the following cautionary notices on their respective websites:

http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr00050.html :
"Warning: Non-solicited invoices relating to trade-mark registration applications
The Canadian Intellectual Property Office (CIPO) has learned that certain companies are soliciting payment for Canadian trade-mark registration applications that were in fact not requested."

If you receive an invoice relating to an application filed with the Trade-marks Office sent by an entity other than CIPO or your agent, please contact either the Client Service Centre at 1-866-997-1936 (or at 819-934-0554 for international calls) or your agent before responding to it.
http://www.wipo.int/madrid/en :
On several occasions, the attention of the International Bureau has been drawn to the fact that certain organizations are sending letters to the owners of international registrations, inviting them to register their marks in publications which appear to be of an official nature. The International Bureau warns the owners of international registrations and their agents that such a publication has absolutely no legal effect in regard to the protection of the said marks and is therefore unnecessary."

The only communications that are relevant to your Canadian trade-mark registration(s) are those emanating from the Canadian Intellectual Property Office (CIPO) or your Canadian trade-mark agent."

If you receive an invoice or a communication relating to your trade-mark from an entity other than CIPO or your trade-mark agent and are not sure what to do, please communicate with me prior to responding.

Below are examples of solicitations for publication “services” of trade-marks that have no added value. Do not answer these solicitations and throw them away.

i Support Net
IDM - International Data Medium Anstalt
Patent Trademark Register
Trademark Info Corp
Trademark Safeguard - Monitoring Service
United States Trademark Centre
United States Trademark Protection Agency
United States Trademark Renewal Service

For information on Domain name slamming read this excellent post:

Thursday, August 20, 2009

DOT TEL: A New Type of Domain Name

By Nathaly J. Vermette - August 20, 2009



The “dot.tel” or “.tel” domain is relatively new general Top Level Domain (gTLD) that is administered by Telnic (http://www.telnic.com/) and it is not a regular domain. This domain does not point to a regular web page, but to a contact detail listing that is inputted by the registrant. These entries create a new virtual worldwide phone book that is updated in real time. See the Bloomberg interview where the concept is clearly explained: http://www.telnic.com/tel-bloomberg.html . (Other interviews with CNBC, CNN can be found at : http://www.telnic.com/tel-interviews.html )

The http://www.canadiantmlaw.tel/ , is just an example of how it is used on an individual or business basis.

For businesses, the possibilities are greater, and more applications will be developed. The .tel rush has only just begun, and we are at the forefront of a new communications method. Business applications will be rolling out shortly.

I attended the Dot-Tel Camp Toronto-1 Saturday, August 15th, 2009 at the Royal Ontario Museum (ROM) and spoke about Canadian trade-mark law and domain names, and learned how this new gTLD will be used through new applications.


Among the applications that I have since learned about, there are two that stand out that really illustrate the strength of the .tel domain name:

For Blackberry®: Go to http://www.hornethub.com/ or http://www.hornet.tel/ (will be in the app store hopefully in a month or 2) and download the HORNET application.

For iPhone®: Go to the application store and download SUPERBOOK

Once installed, look up CanadianTMLaw.tel . You will have all of my business contact information that can be saved directly to your contacts in your phone. Imagine how this can be useful for your contact information.


The strength of these applications lies in the fact that you can save the contact details directly to your phone without having to input them manually. In addition, once on the contact page, your phone can make the phone call, or open the page to send an email, or SMS immediately.

Secondly, this domain easily updates in seconds with various applications such as MyDotTel, eliminating the need to call your webmaster to make changes to your website. This is especially useful when employee directories need to be updated on a regular basis. You can simply link your web sites’ contact page to your .tel domain and keep your contact information up to date to the minute.

Thirdly, for frequent business travellers, the application can also have several profiles that can be updated instantaneously to let your customers and business partners know who and where to reach you.

Finally, for small businesses who do not want to have a webpage, this method provides them witha quick and cost effective web presence.

More applications are being developed as you read this and will roll out shortly.

I think that trademark owners and companies should register their .tel domain name in order to participate in this worldwide directory now, before someone else registers the names.

Here is a brochure that explains why businesses should sign up: http://telnic.org/brochures/top10/Top10ReasonsToBuy.pdf

I hope this is helpful. Please feel free to call me should you have any questions relating to this subject matter.


P.S.: a cute video for more personal applications (if you have a few minutes for a smile) http://telnic.com/ Enjoy !

Find me at http://www.canadiantmlaw.tel/ !

DO IT NOW !!! GO TO : http://vermette.registertel.com