When Will a Permanent Injunction Be Granted in Canada for Intellectual Property Infringement? The Influence of Ebay v. Merc-Exchange

Abstract

It has often been asserted that, upon proof of patent validity, copyright ownership or trademark infringement, a permanent injunction will be granted as a matter of course. The decision of the U.S. Supreme Court in eBay v. Merc-Exchange, concerning the activities of a patent troll, has put into question the correctness of that assertion. The U.S. Supreme Court has restored the discretionary nature of the inquiry to grant a permanent injunction in intellectual property disputes, and requires the plaintiff to demonstrate that monetary remedies are inadequate. While there is no similar and definitive statement from Canadian courts, I argue that Canadian law largely mirrors the approach now adopted in the U.S. This approach is to be preferred as the best way to match appropriate remedy to the complex policy choices engaged in regulating intellectual property. It is also an approach to remedies endorsed in other areas of law by the Supreme Court of Canada.

Keywords: Interlocutory injunctions, intellectual property, patents, remedies