If you haven't scrolled all the way down lately to the "blawgers" list on the right-hand side, you may have missed a recent addition which is worth highlighting: The Court, a blog published by Osgoode Hall Law School which is the leading source for news, analysis and discussion of all things related to the Supreme Court of Canada. Check it out.
In addition to its general awesomeness, I wanted to draw attention to a recent trade-mark issue that The Court encountered. Copyright concerns generally attract all the howls of outrage: over the last decade or so, it's been the always-juicy targets of record companies and movie studios that have mobilized their resources in various ways both advised and ill-advised, resulting in all sorts of headlines and sometimes vitriolic discussion. But trade-marks, their uses and abuses, should attract just as much scrutiny. What happened to The Court should help illustrate why.
To summarize: up until January 22 (or thereabouts), the banner at the top of The Court's page was graced with a stylized (and really rather striking) rendition of the building which houses the Supreme Court of Canada (a picture of the building can be found here). This was evidently a problem - it's a bit unclear from The Court's account, but either someone contacted The Court on behalf of the real Court with a takedown message, or someone at The Court realized they might be infringing on a trade-mark of the Supreme Court - so, the attractive drawing of the Supreme Court of Canada building was duly replaced with a somewhat less attractive drawing of a Doric-ish column.
You read that correctly. The Supreme Court of Canada has four trade-marks, which are referred to as "official marks". Pursuant to section 9(1)(n)(iii) of the Trade-marks Act (Canada),
No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for, ... any badge, crest, emblem or mark ... adopted and used by any public authority, in Canada as an official mark for wares or services
Three of the Supreme Court's trade-marks consist of images of the Supreme Court of Canada building. Somebody, either representing the Supreme Court or in fear of those representing the Supreme Court, decided that the image which was previously on display at The Court was disturbingly similar to the images of the building for which the Supreme Court itself has sought registration, and so removed the image from the website.
Without putting too fine a gloss on the matter, this is ridiculous.
Setting aside for the moment whether The Court was correct in its anxiety (there's likely a pretty strong argument that the website's use of the image did not fall afoul of section 9 because The Court blog lacks the requisite indicia for the image to have been adopted "in connection with a business"), we should query whether the Supreme Court of Canada, as a government institution, should even be permitted to claim exclusive rights to the image of a building which, if anything, is part of the collective heritage of Canadians. I had tried to make a similar point, with slightly less clarity, in talking about the various skirmishes which have arisen over the last couple of years in connection with the image of the poppy.
The number of Canadians (hell, the number of Canadian lawyers) who could correctly identify the building which occupies 301 Wellington Street in Ottawa is miniscule, but even that shouldn't impact on the broader point: absent an attempt to pass off a business venture as being affiliated with or endorsed by a government entity, there should not be a circumstance where the government is entitled to dictate the use of images, especially of buildings, which are government property. Imagine, if you will, that someone wanted to protest the Conservative government and elected to use a stylized rendition of the Parliament buildings to convey their message. I don't even want to do a search to find out what kinds of restrictions there are on such a speculative use. But when a endeavour like The Court, whose sole purpose is educational and informative, is even potentially falling afoul of trade-mark restrictions, we've got an issue which needs attention.
