Law Times

PAGE 10 FOCUS September 26, 2011 • Law timeS Woman's asbestos campaign sparks IP spat But lawyers doubt Conservatives will take widow to court over logo BY KENNETH JACKSON For Law Times vative Party of Canada logo on her online anti-asbestos mining advertisement, she was trying to grab the party's attention. It was just before the May election when Keyserlingk, whose husband died of a can- cer linked to asbestos exposure in 2009, posted the ad online. A click on the ad would link W to her web site that chronicled her fight against asbestos min- ing in Canada and her husband Robert's struggle to survive. On the left, it has a graphic with the word "Danger" fol- lowed by the text: "Canada is the only western country that still exports deadly asbestos!" Next to that on the right was the Conservative logo with a red maple leaf. She didn't grab the party's attention right away. But many others did see it. "It was as- tounding how much visits we got to the web site as soon as we added the Conservative logo," says Keyserlingk. "The aim really was to awaken the Conservatives that they are do- ing something which is inhu- man and against all science." Then at the end of June, she received an e-mail. It was from the Conservative party. She had finally got its attention. Party executive director Dan Hilton said Keyserlingk had to immediately stop using the hen Michaela Key- serlingk first decided to use the Conser- logo in her ad. "It has come to our attention that your organization is currently us- ing a trademark of the Con- servative Party of Canada in your advertising material," wrote Hilton. "This usage is unauthorized and must cease immediately. Failure to do so may result in further action. Please govern your- self accordingly." Keyserlingk responded to Hilton about a week later seeking forgiveness for her tardiness. "I am delighted that someone in the Con- servative Party of Canada is finally reacting after years of work by chrysotile asbestos victims. I would really like this to go away and was hop- ing we could come to some agreement before the ads get replicated too often. What do you have in mind?" Hilton waited five days be- fore he replied. He wasn't inter- ested in discussing the matter. Calling Keyserlingk by her first name, he said, "There should be no use of the Conservative Par- ty's logo on any material gener- ated by your organization." This time, Keyserlingk got back to Hilton the same day. "Mr. Hilton, I am not an or- ganization, only the wife of a man I loved for over 45 years who suffocated to death thanks to asbestos," she replied. "He was an active proud Conserva- tive but the party he loved now defends which killed him and supports the export of his cruel death to unsuspecting victims University of Ottawa le- gal academic Teresa Scassa says she doesn't think there's much of a case in terms of trademark infringement. "The letter she received talked only about trademark law and not copyright be- cause I think the two raise very different issues. I don't think there is much of a trademark case there sim- Michaela Keyserlingk, left, with her husband Robert. She has been at odds with the Conservative Party over the use of its logo. in the developing world." She suggested they meet and discuss the matter, but Hilton went silent. "The last time I heard from the Conservatives, they told me to cease and de- sist using their logo," she says. "That was back in August." Keyserlingk's husband was the former president of the Ot- tawa-Centre Progressive Con- servative riding association. He spent the last years of his life fighting the export of asbestos. The World Health Organi- zation estimates asbestos-relat- ed illnesses kill about 100,000 people a year. Almost half are occupational cancer deaths, in- cluding mesothelioma. Canada exports asbestos from mines in Quebec. It can be used in everything from building insulation to brake pads. It was even once used in cigarette filters in the 1950s. The Canadian Medical As- sociation has condemned the government for continuing to export the deadly product, but the Conservatives reaffirmed their stance in the summer. They argued against limita- tions on the export of asbestos at the United Nations summit in Geneva this past June. "This is an important health- care issue and a product that causes significant illness — even death," said outgoing CMA president Dr. Jeff Turnbull in a Vancouver Sun article on Aug. 25. "Canada should not be in the business of exporting such a dangerous product." Dimock Stratton welcomes Cristina Mihalceanu and Bentley Gaikis Cristina completed the jd program at University of Windsor in 2010 and was a member of the Harold G. Fox ip Moot Committee in 2009 and 2010. Prior to law school, Cristina received a B.Sc. (Honours) with a concentration in Biochemistry and Biotechnology. Bentley received his jd from Queen's University in 2010, where he also re- ceived his B.Sc.E. (Chemical) and M.Eng (Chemical). Bentley has worked as an engineering project manager and while attending law school he acted as a consul- tant in the field of renewable energy. Welcome to the firm! Dimock Stratton llp experience. results. 20 Queen W. 32nd fl, Toronto | 416.971.7202 | dimock.com Untitled-1 1 www.lawtimesnews.com 11-09-19 11:31 AM The CMA also took a hard line against Prime Minister Stephen Harper's government for contesting the international designation of chrysotile asbes- tos as a hazardous substance. Keyserlingk's husband was diagnosed with cancer in 2007. He was a man who ran mara- thons and was a non-smoker. Doctors would trace his cancer to when he was a cadet on Ca- nadian naval ships some 40 years earlier. The ships used asbestos to fireproof and insulate pipes. "My husband entered a world of trial drugs, chemo- therapy and palliative radiation treatments, embolisms, and chest infections," Keyserlingk wrote on her web site, cana- dianasbestosexports.ca, that she launched soon after her hus- band's diagnosis. Her goal was to spread awareness and stop Canada from exporting asbes- tos. Since Keyserlingk's story broke in August, she has re- ceived hundreds of e-mails of support from people she has never met. Some of the messag- es come with cheques or prom- ises to help fund her legal de- fence if the Conservatives take her to court for using their logo. She sends all of the money back, however, because she has been told that if she profits from the use of the advertisement, a court could find her liable. ply because her use is non- commercial. Where there's a non-commercial use of the trademark for purposes of criticism, and this is clearly criticism, it's simply not captured by trademark law." Scassa notes the legislation is meant to stop competitors from using registered trade- marks that may diminish the owners' value. But copy- right law is a little different in this case because it's a logo that Keyserlingk used. According to Scassa, there has been case law in Canada where critical non- commercial use was an infringe- ment of copyright because the logo was an artistic work. "The reproduction of that work is a violation of copyright law, and the courts have been very resistant to arguments about such uses being fair deal- ing," she says. But if the Conservatives do go that route, Keyserlingk would have help. She notes sev- eral lawyers and law students have offered pro bono assistance. Third-year University of Ottawa law student David D'Intino, for example, says Keyserlingk's story struck a chord when he first read it. He wrote her offering to help if she needed it. "This is exactly the type of fight I want to be a part of. It is just who I am. As a third-year law student and not a lawyer, I cannot offer spe- cific legal advice and certainly would not charge for my ex- pertise but I can still assist in moving the matter along and finding Michaela an attorney who would work pro bono if need be." He says while the Conserva- tives may have a case regarding copyright infringement, the real question is whether the government would be "foolish" enough to litigate the issue and face further public scrutiny. "They have nothing to gain because Michaela isn't profit- ing from the use of the logo, so damages, if any, would be in- significant. The political fallout would be catastrophic given that the spotlight would again fall on their asbestos policy, which is purely a political one rather than a monetary one." Scassa feels the same way. "I am not surprised she has not heard further. It had to be huge- ly embarrassing for the Conser- vative party, frankly. They may just want to let it go." The Conservatives didn't respond to a request for com- ment on this story. LT

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