Anything But Tired: The Doctrine of Exhaustion in Canada
Journal of Intellectual Property Law & Practice (2015) 10(11): 801-802
2 Pages Posted: 28 Oct 2015 Last revised: 4 Nov 2015
Date Written: October 25, 2015
Abstract
With the recent US Supreme Court decisions in Kirtsaeng v John Wiley & Sons, 133 S. Ct. 1351 and Bowman v Monsanto, 569 U. S. ____ (2013) the doctrine of exhaustion has once again been revitalized. In its most basic formulation the doctrine stands for the proposition that the enforceability of the intellectual property rights embodied in a tangible object are extinguished, or 'exhausted', after its first sale. The rule, common law in origin, allows for the downstream re-sale of patented articles, trade mark adorned clothing, and textbooks without infringement. This brief editorial examines the common law and statutory footing of the doctrine in Canada, and encourages courts to ‘supplement’ their decisions and give the doctrine 'wings', as it were.
Keywords: patents, copyright, trademarks, Canada, remedies, litigation
Suggested Citation: Suggested Citation