Accounting of Profits in Intellectual Property Cases in Canada (2007)

Abstract:

An accounting of profits is a monetary remedy measured by the profits made by the defendant. It is available in Canada for copyright, patent, and trade-mark infringement and has been the dominant monetary remedy for patent infringement in Canada since the groundbreaking Teledyne case in 1982. In its 2004 decision in Monsanto Canada Inc. v. Schmeiser, the Supreme Court of Canada adopted an approach that is a significant shift from the way in which remedy had been commonly understood since Teledyne. This article reviews the law respecting this remedy with emphasis on comparing the changes implied by the Schmeiser decision with the common understanding before Schmeiser, arguing that in many cases these views may be reconciled. It is an updated version of an article published in 2001, which reviewed Canadian law respecting this remedy as it was then understood.