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Airline wins in clash between free speech and IP rights

Originally published in

Toronto intellectual property lawyer John Simpson says a dispute between a major airline and a disgruntled former passenger highlights the fundamental clash between free speech and IP rights.

A Federal Court judge recently ruled that the airline’s trademarks and copyright were infringed by the former customer, whose online complaint site used a web address with a slight misspelling of the company’s name.

“There is always a tension in these criticism cases between freedom of expression on the one hand, and IP rights on the other,” Simpson, principal of IP and new media law boutique Shift Law, tells “It’s an important right for Canadians to be able to express themselves, but you get the distinct sense that the court feels the defendant has gone too far here in its trashing of the rightsholder’s business.”

The man used the site, which mimicked the look of the airline’s, and adapted a copyrighted logo by adding a frowning face to the original, to collect and publish complaints about the company, as well as offering readers advice on their legal rights, the decision says.

The judge accepted that the site could be classed as a parody under the fair dealing exception contained in s. 29 of the Copyright Act, but concluded it failed at the second stage of the test to show its use of the copyrighted material was fair.

“The Defendant did not satisfy the Court that there was ever any intent for humour – rather, the Defendant’s intent was to embarrass and punish [the airline]for its perceived wrongdoings. As discussed above, parody must include some element of humour or mockery – if extended too far, what may be designed in jest as parody may simply become defamatory,” the judge wrote.

“Parody is not simply a defence to copyright infringement – it is also an aspect of free speech. However, like all free speech, it is not unrestricted…The questionable purpose of the dealing, amount of the dealing, and effect of the dealing all weigh in favour of the conclusion that this dealing is not fair,” he added in his judgment.

Simpson says the case was unusual because it raised issues that come up more often in disputes between a rightsholder and a competitor, rather than a critic. However, he says the airline scored a resounding victory in court.

“It’s not often you see a case where so many potential issues are explored,” he says. “And for every single issue, the judge decides in the plaintiff’s favour.”

The defendant launched the site back in 1997 after the airline’s unsatisfying response to one of his own complaints. Although he will be allowed to keep the domain name, the judge added that “this must not be in association with the same services as provided by the Plaintiff.”

The judge also concluded that the airline was entitled to an injunction prohibiting the former customer from using the airline’s trademarks and copyrighted works, but asked both parties for their submissions on its precise nature and scope.

“It’ll be interesting to see how that plays out and how the site differentiates itself,” Simpson says. “It will have to be an extensive injunction with very specific terms.”


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