Ronald E. Dimock

Kirkbi held patents for LEGO construction sets.

When the patents expired in Canada, Ritvik began manufacturing and selling interchangeable bricks.

Kirkbi claimed an unregistered trade-mark in the 'LEGO indicia' (the pattern of raised studs) and sued for passing off under s. 7(b) of the Trade-marks Act.

Ritvik challenged the constitutionality of s. 7(b).

The Supreme Court of Canada held that s. 7(b) is intra vires Parliament as a valid exercise of the general trade and commerce power.

However, Kirkbi's passing-off claim was dismissed because the doctrine of functionality bars purely functional designs from being the basis of a trade-mark, whether registered or unregistered.

The appellants appealed a finding that they infringed the respondents' patent for a dual action washing machine agitator with flexible vanes.

The appellants argued the patent was invalid due to double patenting, asserting that an earlier patent already covered the invention or rendered it obvious.

The Supreme Court of Canada dismissed the appeal, affirming the validity of the patent and the finding of infringement.

In doing so, the Court established that 'purposive construction' is the proper approach to patent claims construction for both validity and infringement analyses.