May 24, 2012
Today, the Supreme Court of Canada denied application for leave to appeal in Lojas Renner S.A. v. Tucows.Com Co. (Ont.) (Civil) (By Leave) (34481) Coram: Deschamps / Fish / Karakatsanis.
The dispute was over the right to the internet domain name “renner.com”. The applicant, Lojas Renner S.A., operates a number of retail department stores in Brazil and owns the registered trademark “Renner”, while the respondent, Tucows.com, is a Canadian domain name registrar which purchased the domain name “renner.com” in 2006 and is the registrant of that domain name with the internationally-recognized non-profit organization, the Internet Corporation for Assigned Names and Numbers (“ICANN”). Lojas Renner S.A.’s motion to set aside service ex juris of Tucows.com statement of claim and to stay the action for want of jurisdiction was granted. The Ontario Court of Appeal unanimously allowed Tucows.com’s appeal. The Court of Appeal for Ontario held that Ontario had jurisdiction over the dispute, finding that a domain name is personal property and that presence-based jurisdiction is established if the plaintiff’s servers are physically located in Ontario.
Lojas Renner S.A. unsuccessfully sought leave to appeal on the following issues:
- Whether the Court of Appeal erred in stating that the policy of the UDRP is to “refer” legitimate disputes to the Court?
- Whether the Court of Appeal erred in holding that the Superior Court of Ontario’s jurisdiction was “unlimited and unrestricted”?
- Whether the Court of Appeal erred in making no assessment of whether the claim before it was justiciable?
- Whether the Court of Appeal erred in determining in the abstract that a domain name was “personal property in Ontario”?
- Whether the Court of Appeal erred in failing to consider whether it accords with principles of order, fairness and comity to read “intangible” into Rule 17.02 – Rules of Civil Procedure, R.S.O. 1990, Reg. 194, Rules 17.02(a), 17.06(1).
I previously wrote a case comment about this important internet jurisdiction case: “The Internet as Property: The Implications of Tucows.Com Co. v. Lojas Renner S.A., and SOPA”, The Globetrotter, OBA International Law Section Newsletter, Volume 16, No. 1 – December 2011 [pdf].
Like this:
Be the first to like this post.
Tags: Canada, Civil procedure, Court of Appeal, Court of Appeal for Ontario, Domain name, ICANN, Ontario, Supreme Court, Supreme Court of Canada, Tucows, Uniform Domain Name Dispute Resolution Policy
Posted in assumed jurisdiction, conflict of laws, copyright, cyberlaw, cyberspace, cybersquatting, Dispute Resolution, intangible property, intellectual property, lis pendens, litigation, parallel proceedings, Supreme Court of Canada, Tucows.Com Co. v. Lojas Renner S.A. | Leave a Comment »
May 23, 2012
Chanakya Sethi, Student-at-Law (Osgoode Hall Law School – York University) has posted “Beyond Irwin Toy: A New Approach to Freedom of Expression Under the Charter”, Appeal, Vol. 17, pp. 21-45, 2012. The abstract reads:
The Supreme Court of Canada has struggled for more than two decades to resolve the inherent tension in its expansive interpretation of freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms with the high standard of justification that limits on that right must satisfy under section 1. The Court’s attempts have not assuaged critics who point to a continuing methodological anarchy in the Court’s jurisprudence. Despite ample criticism, however, little has been said in the way of proposed alternatives. This paper is an attempt to fill that void.
The author proposes an approach to section 2(b) adjudication that begins by animating the normative judgement latent in the Court’s jurisprudence: When not all expression is equally worthy of protection, not all expression should be equally protected. The foundation of this methodology lies in a purposive analysis of section 2(b), with an inquiry as to which categories of expression lie at the core of the guarantee and which lie farther afield. Those forms of expression closest to the core should be subject to the strictest form of scrutiny under section 1, while those outside the core should be subject to attenuated standards of review. Crucially, these distinctions must be evidenced by explicit tiers of scrutiny.
The proposed approach yields important benefits that address the specific criticisms levelled at the Court’s current methodology, including clarity and predictability, prudential limits on the flexibility the Court affords itself, and a more efficient use of the Oakes test, especially its third branch. Though the full impact of the proposed methodology is beyond the scope of this paper, the approach’s implications are most clear in the realm of political expression, where several of the Court’s recent precedents would likely have been decided differently.
Download a pdf copy of the article via SSRN here.
Like this:
Be the first to like this post.
Tags: Canada, Canadian Charter of Rights & Freedoms, Constitutional Law, Freedom of speech, Irwin Toy, Section One of the Canadian Charter of Rights and Freedoms, Supreme Court, Supreme Court of Canada
Posted in Charter of Rights and Freedoms, Constitution, Constitutional Rights, free speech, Freedom of expression, freedom of speech, Irwin Toy v. John Doe, Supreme Court of Canada | Leave a Comment »
May 16, 2012
Kedar S. Bhatia (Student-at-law, Emory University School of Law) has posted ”Reconsidering the Purely Jurisdictional View of the Alien Tort Statute”, Emory International Law Review, 2013, forthcoming/Emory Public Law Research Paper. Here’s the abstract:
The Alien Tort Statute is a remarkable provision. This thirty-three word statute lay dormant for nearly two centuries but now allows federal courts to hear claims for violations of the law of nations stemming from behavior anywhere in the world. Such an extraordinary interpretation was far from inevitable and remains on unsteady footing.
This article argues that the Statute should be read as purely jurisdictional, rather than as a hybrid provision granting both jurisdiction and a cause of action. In contrast to the current hybrid model, a strictly jurisdictional view of the Alien Tort Statute would provide a manageable framework for expanding the scope of the statute. Rather than requiring courts to first measure the specificity of international law and then gauge the practical consequences of recognizing a new cause of action, the jurisdictional view would require Congress to make those difficult, complex, and weighty policy decisions. A purely jurisdictional view of the statute adheres more closely to well-established views toward federal common law and also patches many of the problems that have arisen in applying the statute.
Download a pdf version of the article via SSRN here.
Like this:
Be the first to like this post.
Tags: Alien Tort Statute, Cause of action, Emory University School of Law, International law, Kiobel, Law, Statute, Supreme Court of the United States, United States
Posted in Alien Tort Statute, customary international law, International, international law, jurisdiction, Kiobel v. Royal Dutch Petroleum | Leave a Comment »
May 11, 2012
I can’t stand Flawging or Splawging (spam law blogging), but I genuinely detest Blog Scraping, including RSS scraping.
It is more than plagiarism.
It is intellectual property theft.
The Trial Warrior Blog is a personal law blog (blawg). I devote a significant amount of time and energy in writing posts for the benefit of my readers. It is NOT commercial speech or lawyer advertising and is in no way associated with my legal practice or my law firm.
I have previously taken a stand on this issue, which resulted in lawyerlocate.ca abandoning its RSS aggregator feed.
Today I noticed that one of my posts has been redirected by an RSS feed in violation of my copyright. The only exceptions are where I have authorized or consented to have my blawg being added to a RSS feed aggregator (e.g. Canadian Law Blogs List at lawblogs.ca because Steve Matthews had the courtesy to ask first) or the exclusive, non-transferrable license granted to Newstex to syndicate my blawg, for which I receive a nominal royalty which covers administrative costs associated with operating my blawg. Read the rest of this entry »
Like this:
Be the first to like this post.
Tags: Copyright, NewsAlloy.com, RSS, Web application
Posted in blawgs, blog, copyright | 6 Comments »
May 11, 2012
Lights! Camera! Action! Hosted by Steven Spielberg (Photo credit: Wikipedia)
The recent decision in Code Inc. v. Indepedent High Electoral Commission, 2012 ONSC 2208 (CanLII) ["Code Inc."] held that video conferencing is a viable option for the conduct of cross-examinations of foreign witnesses on a jurisdictional motion. Read the rest of this entry »
Like this:
Be the first to like this post.
Tags: Forum non conveniens, Ontario
Posted in assumed jurisdiction, attornment, conflict of laws, consent-based jurisdiction, courts, forum non conveniens, international litigation, jurisdiction, jurisdiction simpliciter, presence-based jurisdiction, Van Breda, Van Breda v. Village Resorts Ltd. | Leave a Comment »
Antonin I. Pribetic
