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by Gil Zvulony, Canadian Defamation Lawyer

It is common practice these days for police departments, and other law enforcement bodies to publish the names of people that have been charged with a criminal offence.  Typically, these press releases are distributed to the media and are then picked up in the press.  For example the RCMP has its own Newsroom section on its website where the public can view the names of people that the RCMP have charged.  These press releases typically persist on the police department’s website and are indexed by search engines.   The end result is that an internet search for the accused’s name yields the news that a person was charged.  The question arises about whether this common practice is defamatory?

What is Defamation

The Supreme Court of Canada ( in Grant v. Torstar Corp., 2009 SCC 61 (CanLII)) stated that in order to establish a claim for defamation a plaintiff must establish that:

a) the impugned words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
b) the words in fact refer to the plaintiff; and
c) the words were published, i.e., that they were communicated to at least one person other than the plaintiff.

Once the plaintiff has established these elements, falsity and damage are presumed, and the onus shifts to the defendant to advance an appropriate defence to escape liability.  A likely defence in cases of reporting charges or convictions would be the defence of “justification”.  Justification, in law, means that the defendant takes the position that the words published are true and intends to prove it.

Reporting Charges or Guilty Verdicts

Applying the above test we see that in most cases there is no problem by simple publishing a story that someone was charged with an offence; provided that that person was in fact charged.  The law is quite clear in this regard.  Generally speaking, a statement indicating that a person has been charged with an offence is not defamatory because reasonable persons are mindful that an accused is presumed innocent until proven guilty: see Miguna v. Toronto (City) Police Services Board, [2004] O.J. No. 2455 (S.C.) at para. 6, aff’d [2005] O.J. No. 107 (C.A.); see also Sauvé v. Canada,  [2010] F.C.J. No. 887 (T.D.) at para. 27.

An interesting issue arises when a press release goes beyond the simple reporting of charges.  What happens when the press release adds “commentary” and “background” to the press release?  The law states that defamation may still exist if what is reported implies that the accused person has engaged in conduct more serious than the charge or conviction: see M.D. Mineralsearch Inc. v. East Kootenay Newspapers Ltd., 2000 BCSC 1456 (CanLII), 2000 BCSC 1456.

This was one of the issues that the Ontario Court of Appeal dealt with in the case of  TPG Technology Consulting Ltd. v. Canada, 2012 ONCA 87 (CanLII).  The appellants, TPG Technology Consulting Ltd.  were charged under the Competition Act, R.S.C. 1985, c. C-34s. 47.   The appellants alleged that the charges and the manner in which the charges were announced to the public, “were part of a deliberate and malicious effort by the respondents to discredit and harm the appellants”.  The respondents, the Crown,  argued that they were simply reporting the truth.

The alleged defamatory words that have been disseminated on the Bureau’s website:

As a result of the agreement, the bidders were allegedly able to maximize the rates at which services were to be provided to the various departments.

…the Bureau’s best weapons to combat these secret criminal anti-competitive agreements.

Some recent studies suggest that in cases where bid- rigging occurs, the price paid for the good or service typically increases by about 20 percent.

The Bureau found evidence indicating that several IT services companies in the National Capital Region secretly coordinated their bids in an illegal scheme to defraud the government by winning and dividing contracts, while blocking out honest competitors.

Bid-rigging is a criminal offence where bidders secretly agree not to compete or to submit bids that have been pre-arranged among themselves.  Their goal is to thwart the competitive tendering process and inflate prices to purchasers.

Bid-rigging charges under s. 47 of the Competition Act. Charges laid against 7 companies and 14 individuals based on allegations that the parties entered into agreements to coordinate their bids in an illegal scheme to defraud the government by winning and dividing contracts for information technology services

 

The story was picked up in several media outlets.

The plaintiff sued and the crown sought to have the claim dismissed on the grounds that the impugned statements are not capable of bearing defamatory meaning.  The lower court allowed the Crown’s motion and dismissed the claim (see 2011 ONSC 4604 (CanLII), 2011 ONSC 4604, [2011] O.J. No. 3511.  The plaintiff appealed.

The Court of Appeal gave important parameters for reporting that someone was charged with an offence.  The Court stated the following:

[10]      The motion court judge appropriately characterized the issue, at para. 18 of his reasons, as whether the respondents “went beyond simply stating that the [appellants] had been charged with bid-rigging; specifically, did they imply that the plaintiffs engaged in conduct more serious and blameworthy than bid-rigging.”

[11]      A report that someone is under investigation or that they have been arrested for, or charged with, a criminal offence is not considered the “equivalent of saying that the person has committed the crime unless there is something in the language of the report that suggests the plaintiff’s guilt”: Raymond E. Brown, Brown on Defamation, loose-leaf, (Toronto: Carswell, 2011), ch.4 at pp. 4-165 to 4-166; Roger D. McConchie & David A Potts, Canadian Libel and Slander Actions, (Toronto: Irwin Law Inc., 2004) at p. 516.  However, reports of arrest or charges will be capable of conveying a defamatory meaning, “where it is stated, either directly or by clear implication, that an offence has been committed, and the qualifications contained in any of the surrounding statements are not sufficient to outweigh or nullify the effect of what appears to be a plain statement of fact”: Shave v. West Australian Newspapers Ltd., [2000] W.A.S.C. 172 (S.C.) at para. 29.

[12]      A distinction is drawn “between reports which are thought to do no more than state that a person is under investigation or has been charged with a criminal offence” and reports which assert “directly, or by clear implication, that the plaintiff has been involved in acts amounting to a criminal offence”; the former are generally not considered capable of a defamatory meaning while the latter are: Shave v. West Australian Newspapers Ltd., [2000] W.A.S.C. 172 (S.C.) at para. 28; Raymond E. Brown, Brown on Defamation, ch.4 at 4-168.

[13]      The law in this area has been most clearly articulated in the Australian case, Mirror Newspapers Ltd. v. Harrison [1982] HCA 50; (1982) 149 C.L.R. 293, per Mason J. at pp. 300-01:

The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally be a jury, and that not infrequently the person charged is acquitted.

A distinction needs to be drawn between the reader’s understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It’s one thing to say that a statement is capable of bearing an imputation of defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition.

The Court then went on to find that it was possible that the words of complained of had a defamatory meaning and therefore the lawsuit should be allowed to continue.  The question of whether the words actually conveyed those meanings, on the other hand, is a question of fact that should not be decided on the preliminary motion that the Crown brought.

Conclusion

Accurately reporting that someone was charged with a crime is permissible.  (Even if legally defensible, the practice of “naming and shaming” raises serious journalistic ethical issues.  See: Dark Consequences of Naming and Shaming  and When accused sex-criminals are exonerated, the media too often goes silent. for a discussion of the broader ethical issues.)  Caution should be taken when reporting background information to avoid the implication that the person charged is actually guilty of committing the crime.

 

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On December 12, 2012, Gil Zvulony will be speaking to a group of lawyers and other legal practitioners at the Commons Institute’s annual Solo and Small Firm Summit 2012.

Mr. Zvulony will discuss how technology can be used to improve client communication.  The program has been accredited by the Law Society of Upper Canada of the Law Society’s CPD requirement.

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Toronto Internet Lawyer Gil Zvulony’s opinion was recently sought by the national and international media with respect to the legality of publishing violent and sexual acts online.  The question of whether an ISP and webmaster could be criminally liable for hosting obscene material was addressed.

Gil Zvulony was commenting on the legality of posting a disturbing violent and obscene video by the “Best Gore” website.  He was critical of the police for not laying obscenity charges.

The media quoted Mr. Zvulony as follows:

I can hear the argument when it was uploaded to that website: ‘They didn’t know about it.’ Okay fine. There’s no real crime where there’s no knowledge, but once they got notice of that and they allowed it to stay on there, that’s where a crime was committed in my view and police should have charged them.

It is illegal to publish obscene material in Canada.  It was Mr. Zvulony’s opinon that an ISP could be held liable for knowingly publishing obscene material.

Mr. Zvulony based his opinion on his reading of Section 163 of the Criminal Code of Canada, and the Supreme Court of Canada case of  R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 SCR 55.

Section 163 of the Criminal Code of Canada reads:

163. (1) Every one commits an offence who
(a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatever; or
(b) makes, prints, publishes, distributes, sells or has in his possession for the purpose of publication, distribution or circulation a crime comic.

Idem

(2) Every one commits an offence who knowingly, without lawful justification or excuse,
(a) sells, exposes to public view or has in his possession for such a purpose any obscene written matter, picture, model, phonograph record or other thing whatever;
(b) publicly exhibits a disgusting object or an indecent show;
(c) offers to sell, advertises or publishes an advertisement of, or has for sale or disposal, any means, instructions, medicine, drug or article intended or represented as a method of causing abortion or miscarriage; or
(d) advertises or publishes an advertisement of any means, instructions, medicine, drug or article intended or represented as a method for restoring sexual virility or curing venereal diseases or diseases of the generative organs.

Defence of public good

(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.

Question of law and question of fact

(4) For the purposes of this section, it is a question of law whether an act served the public good and whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good.

Motives irrelevant

(5) For the purposes of this section, the motives of an accused are irrelevant.
(6) [Repealed, 1993, c. 46, s. 1]

Definition of “crime comic”
(7) In this section, “crime comic” means a magazine, periodical or book that exclusively or substantially comprises matter depicting pictorially
(a) the commission of crimes, real or fictitious; or
(b) events connected with the commission of crimes, real or fictitious, whether occurring before or after the commission of the crime.

Obscene publication

(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.

LINKS

 

 

 

Introduction: What is Intellectual Property?

Intellectual property rights are rights in things that you create with your mind.  Most property rights protect physical things: if you buy a book, you own it as a physical object.  But the book as a literary work is separate from the physical object, and the author needs to have some way to protect his or her rights in that literary work.  That is why intellectual property rights were created: so people can protect, and profit from, the creations of their intellect and imagination.

If you have created something, the question becomes: what type of protection is available for this creation, and if more than one form of legal protection is available, what is the best one to choose?  This primer will give a brief summary of each of the major types of intellectual property rights, and help explain which types of creations they apply to, and what kind of protections they provide in Canada.

Copyright

Copyright is the right to copy or reproduce a work, performance, or recording.  If you write a book, you generally have the right to say how and when and where it can be published, and how the material in the book can be used.  The protection provided by copyright allows you to stop anyone else from copying your work, to be compensated for any profits you lose due to such copying, and to keep others from making unauthorized changes to your creative work.

In Canada, copyright is created by the Copyright Act.  Copyright only applies once the work is fixed in a tangible form.  You cannot have copyright over a story if it is just in your head, or if you have only told it orally; but once it is written down, or recorded, it is a fixed work and can be copyrighted.

Copyright in a work usually lasts until 50 years after the death of the author, at which point the work goes into the “public domain,” which means that it is no longer subject to copyright and can be used by anyone.

Copyright does not protect ideas, which belong to everyone.  Rather it protects the expression of those ideas.  The distinction between idea and expression is not always clear, and it is the focus of many court cases on copyright.  But basically, expression is the work and creativity that it takes to turn an idea into something useful or interesting.  An idea for a “love story” cannot be copyrighted, but a book or movie called Love Story is subject to copyright, because it takes work and thought to create it.

Copyright can be sold to someone else, which means that the copyright in a work can often be owned by someone other than the creator.  The copyright holder can also give someone a licence, which is a limited right to use the work under the conditions specified in the licence.

The first owner of copyright in the work is the person who creates it (or that person’s employer), not the subject; if you take a picture of someone, you own copyright in the picture, not the person in the picture.

An exception to copyright is the “fair dealing” provision, which gives people a limited right to quote part of a work if it is for the purpose of education or reporting or some other legitimate purpose specified in the Copyright Act.  A person reviewing a book may quote some passages from the book to illustrate the points he or she is making in the review, but he or she may not quote the entire book.

A copyright is registered by submitting an application and the relevant information about the work (title, author, description) to the Canadian Copyright Office.  However, copyright protection applies from the moment the work is created, and you can have copyright in an original work without registering it.  But it is always preferable to register a work.  While you can sue for violation of an unregistered copyright, it may be difficult to prove when the work was created.

Trade-marks

A trade-mark is defined by Canada’s Trade-Marks Act as a mark (a name, or a picture, or some other distinguishing mark) used by a person or business for the purpose of distinguishing their goods or services from other people’s goods and services.  trade-mark rights can be used to stop others from using your trade-marks to pass off their goods and services as yours, or to try to profit from the goodwill and reputation of your business.  trade-mark rights can also be used to compensate you for any profits you may lose as a result of unauthorized use of a trade-mark.

One violates a trade-mark by using the trade-mark as a trade-mark without permission of the trade-mark owner.

Unlike copyright, trade-mark rights do not protect creative work in and of itself; instead it protects the goodwill and reputation that attaches to a good or service.  Even something that is too unoriginal to be copyrighted, like a name or a common picture, may be subject to trade-mark rights if it is uniquely associated with a business’s goods and services; you may not be able to copyright the name of your business, but trade-mark rights may allow you to make sure that no other business can use that name.

Some things are subject to copyright and trade-mark protection at the same time.  The Disney company owns copyright in the cartoon character Mickey Mouse, and in Mickey Mouse cartoons.  But Mickey Mouse is also a trade-mark of the Disney company, because he is used by the company to identify its goods and services as being Disney goods and services.  No other company is allowed to use that name or that logo in connection with their products without Disney’s permission, because that use would confuse consumers into thinking they are getting a particular brand of goods and services when they are not.

For trade-mark rights to be violated, it is not enough for the competing trade-mark to have some points of similarity to the original; the competitor must share a “distinguishing feature” that would cause an average person to confuse the two trade-marks, and therefore the two products.

Also, for trade-mark to be violated, the competitor does not have to be in the exact same business as the owner of the trade-mark, but there must be some kind of reasonable likelihood that the public might think that the competitor’s products or services are being made by the real trade-mark holder.  If the two businesses are so different that no one could possibly think they are related, then there is no likelihood of confusion and no trade-mark violation.

To win in a trade-mark violation lawsuit, it is not enough just to show that the competitor is using your trade-mark without authorization and that confusion is likely to result; you must also show that there has been, or is likely to be, real damage to the goodwill or reputation of your business.  This damage can be anything from direct harm to the business to the generalized idea of “harmful association” (if the other business goes under, you would not want people thinking that you are associated with them).

There are two types of trade-marks: Common-law trade-marks and registered trade-marks.  Unlike copyrights and patents, which are purely statutory rights, trade-mark rights are recognized at common law and can be created without reference to the legislation.  If you use a trade-mark in connection with your business, you have rights in that trade-mark.  However, common-law trade-mark rights are not easily enforceable in court; you can sue for violation of a common-law trade-mark, but you have to prove that there is goodwill or prestige associated with the mark – which is difficult if the mark never became well-known – and even if you can prove this, the trade-mark rights only apply to the specific place where this goodwill or reputation exists, and not anywhere else.

Therefore it is usually preferable to register a trade-mark.  This is done by filing an application with the Canadian Intellectual Property Office (CIPO).  The government will accept an application to register a trade-mark if the trade-mark is neither misdescriptive nor clearly descriptive; that is, it must not give a misleading impression of what the goods or services are, but it also must not be just a literal description of the product.  A registered trade-mark is given trade-mark protection across Canada.

Patents

A patent is a limited right granted by the government to an inventor.  It gives the inventor the sole right to make, use, sell, and licence out that invention for a limited period of time.  The Patent Act of Canada sets this time period at twenty years. A patent is not over the physical form of an invention, but the methodof creating the invention; if you invent something, your patent is not over the working model of it, but the detailed plan for creating it.

Whereas copyright protection applies from the moment you create something, patent protection only exists once the patent application is granted.  In order for an invention to be patented, it must have three characteristics:

1) It must be novel: something that was genuinely unavailable before the inventor came up with it.  Even if someone else previously thought of the idea, your invention is still novel as long as the other person did not come up with equally serious, detailed, workable plans for creating it.  The invention does not have to be something that never existed before in any form; it just has to possess some feature or method that is new.

2) It must be non-obvious: you cannot patent something that required no work or special knowledge to create.  If the invention could have been created without effort by anyone with a degree of technical skill, you cannot patent it.

3) Finally, it must possess utility: it must actually do what you claim it does, and fulfil the purpose for which it was invented.  The test for utility is simply whether, by following the instructions you have provided, one can produce the result you intended.

Once a patent is granted, there is a “presumption of validity” in favour of that patent: if someone wants to challenge the patent, claiming they came up with the same thing first, the burden is on them to prove that they did indeed come up with it first.  To be liable for infringement of your patent, a person does not have to copy your invention in every detail; as long as the competing invention borrows the main features that make your invention unique, it counts as patent infringement.

There are some areas of overlap between copyright and patent.  Both protect your work from being copied; both give you the exclusive right to profit from your work.  Something like a new computer program may be eligible for both copyright and patent, because it is both a new and useful invention and an original creative work.  There are major differences, however, between copyright and patent.  Copyright protection lasts for fifty years or more; patent protection for only twenty.  Copyright can protect any creation, useful or useless, while patents can only be granted to creations that have some kind of specific use.  But while copyright applies only to expression and not ideas, patent will protect unique ideas and concepts.

Whether to choose copyright or patent protection depends on what kind of work you have created, and what you most need protected: if it is the expression you want to protect, copyright is the better option, whereas if you want to protect the basic idea you have come up with for an invention, it makes sense to patent your plan for creating that invention.  The costs of obtaining a patent is much more expensive than registering a copyright.

Trade Secrets

A trade secret is a piece of information – a code, a formula, a device or a piece of news – that derives economic value from being confidential.  Trade-secrets are protected by having people agree to keep the information confidential before access is given to the information.

Rights in trade secrets are mostly created by contract; a contract of employment will often contain a confidentiality agreement, which requires the contractee not to tell other people about what goes on within the company. If you give away a trade secret, you may be liable for any economic harm which comes to the company as a result, as long as they can demonstrate that the economic harm came to them as a direct result of that breach of confidentiality.

Giving away trade secrets only creates liability if this is illegal; if a competitor acquires information through legal means – say, if you have no legal or contractual obligations to keep it a secret, and you tell the competitor the information – then there is no liability, even if it creates economic harm.

An invention can be kept as a trade secret.  But if something is a trade secret, it cannot be patented, because patents have to be available to be seen by the public. If you invent something, then, the decision to make is whether you want to protect it by patenting the formula or method you have created, or by just keeping it a secret.

The advantage to protecting something by trade secret, rather than patent, is that a trade secret gives you exclusive rights for as long as you can keep it a secret, whereas once a patent expires, the invention can be used by anyone.  The disadvantage to trade secrets is that once the secret is out, there is very little you can do to stop anyone from using it, though there may sometimes be a way to take action against the person who gave it away.

Conclusion

The type of intellectual property protection you should look for will depend on the type of work you have created and the type of protection you are seeking.

Feel free to contact Gil Zvulony if you have any intellectual property questions.

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Introduction: What is a Domain Name Dispute?

by Gil Zvulony, Toronto Internet Lawyer

A domain name dispute is just what it sounds like: a dispute over the rightful use of an internet domain name.

Someone might register a domain name that is similar to the name or trade-mark of an existing business.  Sometimes this is done to fool people into thinking that the registrant is associated with that business.  Other time it may be an example of cybersquatting, buying up a domain name for the purpose of selling it back to the person who has a legitimate business interest in the name.

If someone has registered a domain name for some illegitimate purpose against your business, you have certain rights and remedies available to you.

Option 1:  Alternative Dispute Resolution

There are different proceedings for resolving a dispute over an American domain name (usually ending in .com) and a Canadian domain name (ending in .ca).

For an American domain name, dispute resolution is governed by the Uniform Domain-Name Dispute Resolution Policy (UDRP) of the Internet Corporation for Assigned Names and Numbers (ICANN).  The Canadian Internet Registration Authority (CIRA) has its own Domain Name Dispute Resolution Policy (“the CDRP”) for Canadian domain names.  Both types of dispute resolution are carried out in writing, not in person, and adjudicated by one or three arbitrators.

Both proceedings examine the same basic questions when deciding whether to transfer a domain name away from the current registrant.  If you are the complainant, you must show the following three things:

1.  The registrant’s domain name is identical or confusingly similar to a trade-mark of the complainant’s;

2.  The registrant registered the domain name in bad faith (that is, he or she registered it for the purpose of competing with the complainant or selling the name back to the complainant);

3.  The registrant has no “legitimate interest” in the domain name: Evidence of lack of legitimate interest in the name can be that the registrant did not use the domain name for a site, or that if he or she did use it, it has no connection to his or her business.

Under the CDRP, a complainant must satisfy the Canadian Presence Requirements by showing that you have a legitimate claim to a .ca domain, usually either by being resident in Canada or by having a business registered in Canada.

If the complainant proves the required elements, the arbitrators will order the registrant to give up registration of the domain name.  They may also order the transfer of registration of the domain name to the complainant if that is the remedy asked for in the complaint.

An arbitrator’s decision can be appealed to a court, by either side.

It should also be noted that these arbitrations are only concerned with the name of the sites, not the content of the sites.  While the content is not completely irrelevant – there must be some kind of similarity in content in order for there to be a possibility of confusing one site with another – the party that loses a domain name dispute only has to give up the name, not change its website content.

Option 2: Court Proceedings

A domain name dispute can also be settled by starting an action in court. What court hears the action depends on whether a trade-mark has been infringed and whether the trade-mark is a registered trade-mark.

If you are suing for infringement of a registered trade-mark, the Federal Court of Canada has jurisdiction, since such actions are covered by the Trade-Marks Act.  In such an action, you will need to prove that the registered domain name is confusingly similar to your unique trade-mark.

If you do not have a registered trade-mark, you must sue the offending registrant for the common-law tort of passing-off.  The allegation in a passing-off case is that the registrant is providing unfair competition by making it seem like his or her business is associated with yours.  You would be required to prove that the registrant has caused actual or potential harm to your business by infringing your trade-mark and misleading the public.

This type of action is based on common law rather than a federal statute, and therefore must be heard by a provincial court.

The United States also has a piece of legislation called the Anti-Cybersquatting Consumer Protection Act (ACPA), allowing trade-mark owners to sue domain registrants specifically for cybersquatting.  While Canadian trade-mark owners cannot take advantage of this, a Canadian registrant can be sued under this act.

Comparative Advantages

Either of the two basic methods of resolving a domain name dispute has its own set of advantages and disadvantages.

The advantage of choosing arbitration is that it is quick and relatively inexpensive.  Also, because the disputants are not required to argue the case in person, it saves time as well as money.  The disadvantage is that the only thing the arbitrator can award you is the domain name: the process cannot be used to obtain compensation for lost business or other damages suffered.

The advantage of going to court is that you can win damages.  The disadvantage is that going to court is significantly more expensive than the alternative dispute resolution.  The court process is also a longer and slower process.

If you simply want the other person or business to stop using a domain name similar to yours, then the arbitration process is likely the simplest, fastest way to handle that.  On the other hand, if you have lost a lot of business to the infringing site, or if the infringement is hurting your reputation, then simply getting the domain name will not compensate you for the damages you have suffered.  In such a case, going to court might be the best way to get compensation for such losses.

Sometimes you can use both remedies: arbitration to settle registration of the name, and a court action to settle issues such as damages.  Clause 4(k) of the UDRP allows a complainant to use both an ICANN proceeding and a court action, as long as the court action is started before the ICANN proceeding is commenced or after the ICANN proceeding is concluded.  The CDRP does not contain any such provision, but it does not prohibit launching court proceedings as well as a CIRA hearing.

Conclusion

Which method or methods you use of resolving a domain name dispute, and who adjudicates the dispute, depends on the circumstances.  What is certain is that you do not have to give up on a domain name just because someone else registered it before you did.  If the domain name has a connection to you or your business, and none at all to the person who registered it, you may have a better legal claim to it than the registrant – and the law provides ways to prove it.