employment law & intellectual property

for a trademark to be registered it must be...

-a mark: something that is visible and separate form the product itself (ex. the logo of a chocolate bar, not the actual chocolate) -distinctive: common words and even colours can be trademarked if their use over time has associated them exclusively with a particular brand of product -used: must be used

reasonable period depends on

-age -nature of the position -length of service -if another contract exists

employees are entitled to notice based on 3 sources:

-an employment contract that includes an enforceable provision that governs notice of dismissal -employment standards leg which provides fairly short notice based solely on length of service -in the absence of an enforceable temrination clause, the common law, which may provide significantly longer notice than either an express contractual provision or a stat provision

length of protection (industrial design)

-an industrial design cannot be registered until 6 months after the applicaiton is filed -protected for 10 years

property law helps manage risks and offers several advantages, such as:

-defines areas where your business may be vulnerable to loss -it sometimes allows ownership and possession to be split -it promotes the lending and borrowing of money -it allows innovation to flourish

post-employment obligations

-letters of reference -confidentiality obligations

length of protection (Copyright Act)

-protects for a fixed period of time -once it expires it falls into the 'public domain'- public is free to use it -however, even then, the author retians the "moral right" to continue to be identified as the work's author -a work becomes part of the public doamin 50 years after the calendar year following the authors' death

collective agreements must include:

-recognition of the union as the exclusive bargaining agent of the employees in the bargaining unit -a term of at least on year during which the collective agreement remains in effect -a prohibition against strikes and lockouts during the term of the agreemnet -deduction of union dues from the wages of each bargaining unit employee if the union requests it -grievance arbitration to resolve disputes that arise furing the term of the agreement -a requirement that any dismissal or discipline of a bargaining unit employee must be for 'just cause'

workplace changes that could initiate a constructive dismissal claim:

-sig changes to benefits packages -relocation of employees -alteration of duties and repsonsibilities of employees -changes inn employee's reporting structure -imposition of new obligations, such as restrictive covenants on employees

employees are entitled to receive notice or pay in lieu unless:

-the employer has just cause for dismissal -the employee has refused reasonable alternative employment with the same employer -the employee is employed under a fixed-term contract -the employment contract is frustrated -the employee is temporarily laidoff

the key employment statues that a business person must be aware of are:

1. human rights legislation- prohibits and provides remedies for discrimination based on specified grounds 2. employment standards legislation- provides minimum working standards for employees, including min wages, overtime, hours of work, termination and severance pay, pregnancy and parental leave, vacation, and public holidays 3. occupational health and safety legislation- outlines requirements and repsonsibilities for creating a safe workplace and preventing workplace injuries and accidents, and which also establishes a no-fault insurance plan to compensate workers for work-related injuries and diseases 4. collective bargaining legislation- gives employees the right to form unions and bargainn collectively with their employer, and also creates a regulatory framework for disputes arising in unionized workplaces 5. privacy legislation- establishes rules concerning how businesses mau collect, use, and disclose personal info

types of trademarks

1. ordinary or classic marks: include the names of products, product lines, businesses, and slogans- the name or slogan must distinguish the product or business from its competitors. 2. service marks: protect services ex. a slogan 3. distinguishing guise: the appearance, shape, colour, and packaging of a product can be charcterized as a trademark if these attributes distinguish the product from that of the competitor ex. the shape of a coke bottle 4. certification marks: labels a product or service as having met a particular sstandard, be it the safety or quality of the goods, the place were the goods were produced, or the workign conditions of the workers who made them ex. a product approved by a legitimate body of something

Workers' rights

1. right to participate in the health and safety of their workplace 2. right to refuse to do unsafe work 3. right to stop unsafe work 4. right to know about workplace hazards

length of protection (Patents)

20 years from the day on which the patent application is filed -the application becomes public 18 months after it is filed -competitors are free to make, use, or sell a previously patented invention once it expires

conditional offer

Offer subject to the fulfillment of one or more conditions

Trademark Act

a federal statue that provides greater protection for trademarks than tort law does. -if a trademark is properly registered, the owner can automatically prevent others from using it anywhere in Canada. -a trademark may be registered even before it is actually used in the marketplace (while passing off can only be claimed if the plaintiff is currently using the name or mark in question) -protection doesn't extend internationally- must obtain protection in each country separately

bargaining unit

a group of the employer's employees whom the trade union is entiteled to represent

union labour practices

actions by employers that interfere with the formation and activities of a union, including intimidation ex. -questioning employees individually about union activities -firing union organizers or other employees who are in favour of union activity -threatening that unionization will jeopardize employee's job security -promising to increase wages if employees reject the union

enforcement of human rights legislation

administered and enforced by an admin tribunal -these publish guidelines and policy papers that suggest how they might respond if a complaint about a particular issue were filed, but are not legally binding remedies for human rights violations include: -pay compensation to the employee for actual lost earnings -pay compensation to the employee for loss of dignity and self-respect, and for mental anguish -pay the employee's legal costs -hire or reinstate the employee -undertake staff training, such as in cross-cultural communicatins or sexual harrassment -implement anti-harassment policy

certification

approval by a labour relations board that gives a union the right to negotiate on behalf of a bargaining unit

Ratification

approval by union members of a collective agreement -involves approval by workers, as evidenced by a vote

to be registered, an industrial design must...

be applied to a finished product -the application must describe not only the design but also the product or products to which the design is applied -must be registed with the Industrial Design Office -will not register designs that have been previously disclosed or used before the one-year period preceding the application

copyright law

branch of law that protects the exclusive right to copy creative work -governed by the Copyright Act

patent law

branch of law that protects the unauthorized manufacture, use, and sale of inventions -encourages individuals and businesses to invest in the research and development necessary to pursue ideas, innovate and invent -permission is commonly granted pursuant to licensing agreements, which allow others to use the patentable invention in return for a fee ->governed by the Patent Act -in order to protect parents internationally, one must make separate application in each country as well

industrial design law

branch of law that protects the visual appearance of a product, including its shape, patters and ornaments -governed by the copyright law -the Industrial Design Act (a federal statute) offers creators of mass-produced goods an opportunity to protect their designs from use by tohers

trademark law

branch of law that protects words, symbols, and pictures associated with a business' name, brand, or product -doesnt protect creativity so much as it protect marketing and advertising clout -has more to do with who USES the trademark and how it leads to brand identification, than with who creates it; its purpose is to FACILITATE COMMERCE, not to promote innovation

registration of a copyright

can register at the copyright office- party of the Canadian Intellectual Property Office -advantages: you can obtain a certification (evidence) -however doesn't have an effect on registration; minimize risk in demonstrating infringement

restrictive covenants

clause in an employment contract that restricts an employee's activities, especially after employment ends; for example, a restrictive covenant might prohibit an ex-employee from disclosing confidential info about the employer 3 types: -'non-competition clauses'- restrict an ex-employee's ability to establish or work in a competing business -'non-solicitation clauses'- restrict an ex-employee's ability to solicit employees or customers of a former employer -'non-disclosure clause'- restrict ex-employees' ability to use a former employer's confidential info

property law

collection of rules that confer rights of ownership, possession, and transferability over things, including both tangible and intangible assets -includes the right to: -possess and use property -prevent others form possessing it -transfer property rights to others

strike

collective refusal to work by a group of unionized employees that usually occurs while an employer and a union attempt to negotiate a new collective agreement

joint health and safety committee

committee composed of equal numbers of mgmt and worker representatives generally required by occupational health and safety legislation

equal pay for equal work

concept obliging employers to pay female and male employees who perform substantially the same jobs in the same workplace at the same rate, unless a legislated exception applies -BCHRS

equal pay for work of equal value (pay equity)

concept obliging employers to pay female and male-dominated jobs at the same rate based on an assessment of job value rather than job content -intended to reduce and eventually eliminate, systemic gender discrim and the wage gap between women and men -CHRA

confidential information and trade secrets

confidential info: info that a business does not want its competitors to have and that it takes steps to protect -not protected by unless under a specific contract ex. supplier pricing, customer names, a/r, advertising slogans before they are launched trade secret: a formula or manu process, and trade secrets are classified as confidential info -these often have monetary value for a business, that is dependent on it remaining confidential. -NOT protected by legislation -there are common law principles that prevent employees from revealing confidential info, however, businesses that are truly concerned, should create contracts

collective agreement

contract between a union and an employer that governs that terms and coniditons of employment for union members

sexual harassment

course of vexatious comment or conduct based on sex or gender that is known or ought reasonably to be known to be unwelcome

harassment

course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome

due diligence defence

defence to a strict liability offence requiring the accused to demonstrate that they took all reasonable steps to avoid committing a prohibited act

undue hardship

difficulty BEYOND that which an employer is required to endure when accommodating the needs of an individual or a group protected under human rights leg implies that a business may have to absorb SOME hardhip, in order to accommodate an employee the SCC stated that the following factors are relevant in proving undue hardship: -the potential for serious disruption of a collective agreement -severe morale problems among employees -the flexibility of a business' workforce and facilitates -the size of the business

progressive discipline

discipline imposed by an employer in steps that increase in severity -ex. persistent tardiness

wrongful dismissal

dismissal without just cause in which an employer breaches their common-law duty to provide reasonable notice to an employee if reasonable notice of dismissal is not given, -'reasonable notice' depends from one case to another,

grievance

dispute arising in a unionized workplace with respect to matters covered in the collective agreement

fiduciary employee

employee who holds a position of trust, could significantly affect an employer's interests, and has special obligations to the employer

unionized employee

employee whose terms and conditions of employment are based on a collective agreement negotiated between an employer and a union rather than on an individual contract of employment

non-unionized employee

employee whose terms and conditions of employment are based on an individual employment contract rather than a collective agreement negotiated between an employer and a union -a contractual relationship

right to reinstatement

employee's rights, provided by statue in some circumstances, to return to the job; for example, an employee who is terminated for going on pregnancy leave may be reinstated by an order issued by an employment standards officer

termination

employers in non-unionized workplaces may dismiss an indefinite employee by providing reasonable notice. and if they have just case for dismissal, no notice is required -if you do no want an employee to remian in their job during the notice period to which they are entitled, you must pay them their wages and benefits out front - 'pay in lieu'

retirement

employers now have a limited ability to impose mandatory retirement policies wihtout contravening the leg

workplace diversity

employment of people from diverse backgrounds in a workplace where all fell welcome and respected

ownership rights (trademark)

entitlement to the exclusive use of it -protected from misuse, and imitation of the mark by others -entitled to prevent another business from registering any trademark that is similar enough to yours that may cause confusion for the public

grievance arbitration

external process for resolving disputes that arise under the collective agreement

the Copyright Act

federal statute, applicable across the country It protects a broad range of works s/a: -books, magazines and newspapers -tables, charts, and maps -music, both recorded and written -computer programs -plays and movies -paintings, drawings, and photographs -sculptures, and architectural works copyright law gives the copyright holder the exclusive right to produce or reproduce the protected work in any form -Canadian copyright law is enforceable outside Canada in countries that are signatories to teh Berne convention, a multinational treaty -however, copyrigt protection doenst last forever and conditions apply

constructive dismissal

fundamental breach by an employer of an employment contract that entitles an emplyee to consider themselves dismissed and to sue the employer for wrongful dismissal -the law treats the situation as if the emplyer had fired the meployee form their old job and hired them in a new one- emplyee is entitled to reasonable notice of dismissal or payment in lieu

ownership of patent rights

generally, it is the inventor of the process or product is entitled to the protection of patent law -even where works are created in the couurse of employment, the inventor may be the owner of the patent unless there is a contract in place that specifies that the inventor's employer is the owner.

accommodation

human rights concept that refers to making changes that allow a person or group protected by human rights legislation to participate in the workplace -'duty to accommodate special needs' ex. ramps, large font, etc -a shared responsibility between employee and employer/union

real property

immovable things, including land, buildings, and fixtures

condonation

implied acceptance by an employer of the conduct of an employee by permitting the conduct to continue withuot warning, discipline, or corrective action

group terminations

in BC, if an employer lays off 50+ employees in a period of 2 months, they are obliged to provide additional notice (or pay) ranging from 8-16 weeks depending on the number of ee's

Patent Act

includes restrictions and complex procedures for obtaining a patent

infringement of patent rights

infringed when anyone produces, uses, or sells a patented invention without the permission of the patent holder.

choses in action

intangible personal property, such as negotiable instruments and intellectual property ex. cheques, promissory notes, money orders

tort of passing off

involves the misrepresentation of a product or business by using a name or mark that is associated with another similar product or business to succeed as a plaintiff in a lawsuit based on passing off, you must prove: -use of the trademark for sufficient time to demostrate a market association between the mark and your product or business -confusion between your trademark and the use of it by a competitor, or misrepresentation by your competitor in connection with your trademark; and -damage to your reputation or a loss of sales

just cause

justification for dismissal without notice based on an indefinite employee's conduct

registering a trademark

may minimize the risk of losing a mark to a competitor registered: the 'R' in a circle unregistered: 'TM' -a trademark may be registed by a business, trade union, or an individual at the Trade-marks office trademarks must not be: -an official govt symbol -offensive -the first or last name of someone who is living or has died within the previous 30 years -a deceptive or misleading description of the product or its place of origin-a generic descriptive work that is regularly used to describe the type of product and that does not distinguish it from competitive products -the name of the product in a language other than English or French

chattels

movable, tangible property ex. stapler, computer, etc

personal property

movable, tangible things, including physical obhects that are not attached to land or buildings, and intangible property -may be held as security for debt

discrimination

negative or singular treatment of a person or group on the basis of a prohibited ground of discrimination under human rights legislation prohibited grounds of discrim: -race -ancestry -place fo origin -colour -religion -sex (BC); gender (AB) -age -sexual orientation -marital status and family status -disability

length of protection (trademark)

no cutoff time for protection- indefinite -however, to keep it registed, you must renew it every 15 years

duty to mitigate

obligation to take all reasonable steps to lessen losses suffered

strict liability offences

offence in which proof that an accused performed the prohibited act is sufficient to sustain a conviction, regardless of intention, unless the accused demonstrates that he took all reasonable care to avoid committing the prohibited act (due diligence)

severance pay

one-time lump-sum payment made to a terminated employee in lieu of proper notice

union

org or workers that negotiates wages and working conditions as a group with an employer

title

ownership

pay in lieu of notice

payment as a substitute for receiving adequate notice where an employee is dismissed without just cause

reasonable notice

period of time an employee should be given between notification of dismissal and end of employment

to be patentable...

physical form: an invention must either have a physical form or be capable fo having a physical form -ex. mathematical formulas or theories are not new, useful and not obvious: an invention must be new in relation to what was known or used previously- 'imrovements' to old inventions require negotiated licensing agreements with the owner of the earlier patent. -cannot have been published more than one year before the application -must be useful in practical sense- have a purpose beyond an artistic one, and must actually do what the patent says it does -msut not be obvious

possession vs. ownership

possession is a key ownership right, and owners of property may grant this right to others by giving them permission to possess their property. When ownership and possession of goods are split in this manner, the legal relationship between the owner and the possessor is called 'bailment'

fixtures

property, such as shelving pr sinks, that is attached to buildings

employment equity

range of measures promoting a representative workforce; legislation and programs focus on four designated groups: 1. women 2. visible minorities 3. people w disabilities 4. aboriginal peoples -resistance due to the additional costs it imposes on businesses and the perception of "reverse discrimination"

bona fide occupational qualification (BFOQ)

reasonably necessary job qualification or requirement imposed because it is necessary for job performance -a job qualification in this instance, must be rationally connected to job performance, adopted in good faith, and reasonably necessary to accomplish a legitimate work-related purpose -to prove that a requirement is reasonably necessary, an employer must prove that it it impossible to accommodate a person who lacks it without experiencing 'undue hardship' ex. trucking business requiring a qualification of sight- discrim against blind people

deed

record of title

lockout

refusal by an employer to let unionized employees into a workplace; usually occurs while an employer and union attempt to negotiate a new collective agreement

workplace law

regulates the day-to-day relationships between you and the employees who work for your business. It affects all stages of these relationships, from the time yuou recruit employees until the time an employee resigns, retires or is dismissed. It even continues after the employment relationship ends -includes: human rights law, contract law, employment standards law, health and safety law, equity law, privacy law, labour relations law, admin law, and tort law

independent contractors

self-employed worker who accepts specific projects, usually from several businesses -not covered by employment standards legislation and therefore, not entitled to receive benefits (vacation pay, pregnancy or parental leave, or the termination notice specified in the standards statutes) -also treated differently under tax law

moral rights

separate from copyright; belong to the creator alone -may not be assigned to anyone, even an employer or published although the author may agree that they will not enforce moral rights they include: -the right to be identifieed as the author/creator, or to remain anonymous -right to prevent changes to the work that might dishonour the creator's reputation, such as drawing a moustance on a portrait -right to prevent the work from being used in association with a product, service, cause, or institution where the association might dishonour the creator's reputation -they may be waived away

recruitment and selection

statutory human rights protections begin even before employment relationship exists. -job advertisements, application forms, the interview process, and pre-employment testing all must comply with human rights law

gender-neutral job evaluation system

system that evaluates the relative value of jobs in a manner that does not favour factors found in jobs traditionally performed by men -CHRA

copyright collectives

the Copyright Act permits copyright holders to form collectives for the purpose of administering their rights -these negotiate licence with users, collect fees, and distribute royalties to the copyright holders -a business that wishes to use copyright materials belonging to others, must contact the appropriate copyright collective to arrange for a licence and pay a fee

fair dealings exception (Copyright)

the chief defence to infringement under the Copyright Act -provides that there is no infringement if the purpose of copying the work is to research, privately stuyd, criticize, review, or report on the work -however, cannot copy the whole thing

non-functional visual appeal

the distinctive curves, angles, and other decorative features of the particular product may qualify for protection as an industrial design if these features are sufficiently novel

private property

thing owned by individuals, businesses, or other organizations

intellectual property

things created by the mind or intellect, such as logos and inventions -includes: patents, trademarks and copyrights ex. designs, slogans, works of art, and inventions, brand names, trade secrets intellectual property law recognizes the value inherent in creating software programs, books, photographs, and scientific inventions, and it provides remedies for thise who own the property right s in these things

public property

things owned by the government for the benefit of society

Labour Relations Board

tribunal that mediates and adjudicates labour relations (and other) matters arising in a province -prohibits employers from interfering with the rights of employees to join the union of their choice and to participate in its lawful activities

originality and fixation (copyright)

two requirements must be met before the creator of a work may enjoy copyright protection orinigality: demands that the work be new in some way and come from the creator fixation: demands that the work be more than a simple idea- fixed to a material form (s/a written pages, digital data, or video/audio recording)

resignation

under common law, indefinite employees have an obligation to provide notice of resignation, just as employers have a duty to provide notice of dismissal -if someone was fired without cause (withut reason based on the ee's conduct that is justifiable in law), must provide notice or pay 'in lieu of notice' under employment standards leg and the common law -damages depend on length of time worked -to be effective, an ee's resignation must be intentional and voluntary

copyright symbol

used by authors of works who are aware of their copyright and wish to assert it -has no legal significance and isnt required -it is intenationally recognized, -reminds people that it is protected

reasonable notice of termination- basics

without a termination provision, an indefinite employee who is dismissed without 'just cause' is entitled to 'reasonable notice' of termination under the common law -if the employer fails to provide said reasonable notice, they may be required to pay the employee damages (usually an equal amount to the lost wages plus benefits)= "severance pay" -should be negotiated at the beginning of the employment relaitonship to reduce the costs and uncertainty of relying on a court decision

WHMIS

workplace hazardous materials information system- national info system designed to provide essential info about hazardous materials in the workplace

poised (or hostile) work env

workplace plagued with insulting or degrading commentary or actions related to a prohibited ground of discrimination under human rights

indirect discrimination (adverse effect or constructive discrim)

workplace policy that unintentionally affects certain groups in a detrimental way -ex. hiring security guards and requiring only people who meet height and weight requirements is not meant to discrim, but does.

ownership of rights (industrial design)

you have the role right to use it when manufacturing the product that you registered with your design -you can prevent other from copying or imitating your design when they manufacture a competing product