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Woodpecker Hardwood Floors (2000) Inc. v. Wiston International Trade Co.
Woodpecker Hardwood Floors (2000) Inc.
Wiston International Trade Co., Ltd. and Wiston Building Materials Co.
The respondent marketed wood flooring products using the trade-name “Woodpecker” for many years before the appellants, who are in the same or closely related business, registered the word as a trade-mark. The respondent obtained an interlocutory injunction preventing the appellants from using their mark. They sought leave to appeal, contending that the chambers judge erred in failing to accept that the registered trade-mark is a complete defence to a passing off action, that jurisdiction was with the Federal Court, not the Supreme Court of British Columbia and the judge incorrectly applied the law in his consideration of irreparable harm.
Held: application dismissed. The appeal will not address directly the substantive issues the appellants seek to have determined by this Court. The proposed appeal is from the grant of an interlocutory injunction. The judge held that the trade-mark and jurisdictional issues raised a serious question to be tried. On this appeal, this Court is unlikely to determine those issues. The judge applied the correct legal test for granting an interlocutory injunction and made no error in the exercise of his discretion.
 The applicants apply for leave to appeal the granting of an interlocutory injunction prohibiting them from using the name “Woodpecker” in the course of selling their wares.
 The parties are in the business of selling hardwood flooring products. The chambers judge noted that the respondent has done so “[f]rom at least the year 2000 and arguably since 1987” using the name “Woodpecker”. It did not register the name as a trade-mark.
 On January 15, 2013, the defendants obtained a trademark registration from the Canadian Intellectual Property Office for a variety of logos, insignias and/or wordmarks, some of which include the word “Woodpecker” and some of which do not. The registration process obviously started some months before that date.
 The ultimate action in this matter addresses more than logos that actually contain the word “Woodpecker”. However, as oral argument evolved on this interlocutory application, it became clear that the interlocutory injunction now sought relates only to those items where the defendant has the word “Woodpecker” in use.
 The respondent sent a “cease and desist” letter to the applicants, but they refused to do so. The respondent then initiated the present action on August 13, 2013. The judge referred to the respondent’s allegation that the applicants were passing off, or attempting to pass off, their wares “in such a way as to cause confusion between their wares and services and those of the [respondent].” At the hearing before me, the respondent stated that it also seeks a declaration that the applicants’ trade-mark is invalid.
 On August 23, 2013, the respondent filed its application for an interlocutory injunction.
1. Its 13-year use of the word “Woodpecker” gives it priority over the registered trademark that the [appellant] obtained 13 years later.
2. The [appellants] obtained their formal registration with the full knowledge of the prior use and therefore prior rights of the [respondent].
3. The [appellants] knew or ought to have known they were not entitled to the registration of the “Woodpecker” marks.
4. The [appellants’] use of those marks has caused and will continue to cause confusion for consumers.
5. The [appellants’] use of the marks has caused and will continue to cause the respondent to suffer loss and damage, including damage to its good will and its reputation amongst consumers and in the industry.
1. Is there a serious question to be tried?
2. Will there be irreparable harm to the plaintiff if the interlocutory injunction is not granted?
3. Where does the balance of convenience lie as between the parties?
1. This Court, the Supreme Court of British Columbia, has no jurisdiction to deal with this matter, and that is an end of the action. This matter should be in Federal Court.
2. Even if there was jurisdiction in this Court, a registered trademark, which the defendants indisputably have, is a complete defence to a passing-off action. The only way the plaintiff can succeed is to seek out and obtain a Federal Court order expunging the registered trademark.
3. There is no evidence at all of several of the requirements necessary in order to succeed in a passing-off action.
The Federal Court has exclusive original jurisdiction, on the application of the Registrar or of any person interested, to order that any entry in the register be struck out or amended on the ground that at the date of the application the entry as it appears on the register does not accurately express or define the existing rights of the person appearing to be the registered owner of the mark.
An injunction … may be granted … by an interlocutory order of the court in all cases in which it appears to the court to be just or convenient that the order should be made.
As a third basis for jurisdiction, the judge relied on his inherent jurisdiction.
… the registration of a trade-mark in respect of any wares or services, unless shown to be invalid, gives to the owner of the trade-mark the exclusive right to the use throughout Canada of the trade-mark in respect of those wares or services.
And last, this is an interlocutory injunction application only. It is not necessary that I determine with certainty that the registered trademark is invalid, but only that with respect to its validity, there is a serious question to be tried. I am satisfied of that, and consequently I reject that argument.
(c) actual or potential damage.
 The defendant argues that there is no evidence with respect to some, arguably all of those, but I reject that notion. It is not necessary that I scrutinize the evidence in detail, either in coming to my decision or in providing these Reasons. I am not able to say with certainty that the plaintiff will be successful in a passing-off action at trial, but I am satisfied from the affidavit evidence before me that it is sufficient to rise above the level necessary to establish that there is a serious question to be tried.
 One of the more hotly contested arguments among those components before me was the submission by the defendant that it is in a wholesale business, while the plaintiff is in the retail business, and consequently, there is no misrepresentation and no possibility for the public to be deceived or confused. But again, I am satisfied that both factually, based on the evidence before me, and from a legal point of view, that is a serious question yet to be determined.
 It follows that I reject that third argument, and having rejected all three of the defence arguments, [it] follows that with respect to the first prong of the RJR-MacDonald case, I am satisfied that there is a serious question to be tried.
 I reject those arguments by the defence. I am satisfied that the plaintiff would suffer irreparable harm if the interlocutory injunction was not granted. I am also satisfied that this is not speculative. There is a difference between saying that damages in the future are speculative and saying that they are not quantifiable.
 The longer the defendants are permitted to use marks confusingly similar to the “Woodpecker” marks, the more their use becomes prevalent amongst the public ââ‚¬â€œ exacerbating the harm, and making it more difficult to unscramble what business losses are due to this confusion and what losses are due to the traditional kinds of business considerations and competition in the marketplace.
1. The strength of the applicant’s case.
2. The adequacy of damages for either party, depending upon the result of this application and of the ultimate action.
3. Irreparable harm and the likelihood that if damages are awarded, they will be paid.
4. The altering of the status quo and the balance of the relationship.
5. Factors affecting public interest.
He considered each of these factors in turn and concluded that the balance of convenience favoured the respondent.
It will be submitted on appeal that the Learned Chambers Judge erred in finding that there was a serious question to be tried on the issue of passing off, having regard to the fact that the appellants have registered the trade-mark WOODPECKER under the Trade-marks Act, which registration is in good standing and provides a full defence to a passing off action.
It will be further submitted on appeal that the Learned Chambers Judge erred in finding that the respondent would suffer irreparable harm arising from the alleged passing off if the interlocutory injunction were not granted, given that no damages for passing off can be suffered so long as the appellants have a subsisting registration of the trade-mark WOODPECKER under the Trade-marks Act, so there would be no future damages for passing off to “unscramble”. As a result it will be submitted that there was no clear and non-speculative evidence of irreparable harm.
 The respondent asserts that the chambers judge properly exercised his discretion and states that “absent a clear, palpable and overriding error: an error in principle, misconstrual of the evidence, or where the injunction leads to a clear injustice”, leave to appeal should not be granted.
 The “overarching concern is the interests of justice”: Hanlon v. Nanaimo (Regional District), 2007 BCCA 538 at para. 2 (Saunders J.A. in Chambers). The four factors are “all considered under the rubric of the interests of justice”: Vancouver (City) v. Zhang, 2007 BCCA 280 at para. 10 (Saunders J.A. in Chambers). Even where the applicant has met all four criteria, leave may be denied where it is not in the interests of justice:Movassaghi v. Aghtai, 2010 BCCA 175 at para. 27, Smith J.A. (in Chambers).
 It is important to remember that the proposed appeal is from the grant of an interlocutory injunction. The chambers judge correctly stated the factors he had to consider, the first of which was whether there is a serious question to be tried.
 Although the parties, understandably, are concerned with the underlying merits of the dispute, particularly the extent of a superior court’s jurisdiction and the interpretation of s. 19 of the Trade-marks Act as it relates to a passing off action, those are, as the chambers judge held, serious questions to be tried.
 The issue for this Court on the proposed appeal would be whether the judge erred in finding that these are serious issues to be tried. In my view, it is unlikely that a division of this Court would venture to resolve these substantive questions on the proposed appeal and is not likely to determine that the judge erred in concluding that they are serious issues to be tried.
 The judge’s determinations that the respondent was likely to suffer irreparable harm and that the balance of convenience favoured granting an injunction largely were based on findings of fact. There was evidence before the judge on which he could make those findings. In my view, a division of this Court is unlikely to interfere with the judge’s conclusions on the second and third factors for granting an interlocutory injunction.
 In my view, the proposed appeal is not meritorious. I see no basis on which to conclude the judge erred in his application of principle to the facts. The applicants seek to have this Court address serious substantive issues of statutory interpretation and jurisdiction on an appeal from granting an interlocutory injunction that is grounded on the conclusion of the chambers judge that these are serious issues to be tried. I consider that determination of these issues by this Court to be premature.
The issue of whether the use of a registered trademark can be enjoined on the basis of passing off of an unregistered trademark by interlocutory injunction has not been judicially decided.
 This proposition is rooted in the relationship between a registered mark and passing off, that is, a serious question to be tried in the action. The issue is somewhat more complicated in this case because the respondent seeks a declaration of invalidity, which directly engages the language of s. 19 of the Trade-marks Act.
Wiston suggests that clarification of competing lines of irreparable harm authority is important to the practice generally, contrasting the Federal Court (Centre Ice Ltd. v. National Hockey League et al. (1994), 53 C.P.R. (3d) 34 (F.C.A.) - proof of irreparable harm must be clear and not speculative) with BC (AGBC v. Wale, 1986 CarswellBC 413 - irreparable is a matter of common sense).
There is no conflicting authority in BC to be clarified. Further, these authorities can be interpreted consistently as seen in the reasons of the chambers judge. Evidence of loss of control of one’s own trade-name and goodwill is distinct from merely asserting there is a loss of goodwill to be inferred from confusion. This loss of control [of] one’s own trade-name and goodwill is recognized at law as an impairment of goodwill and reputation, and the damages arising from such an impairment may be presumed.
As noted by the chambers judge, speculative is not the same as not quantifiable. Silverman J. assessed the affidavit evidence, and accepted there was sufficiently clear proof of Woodpecker’s loss of control over its name and associated goodwill, which gave rise to unquantifiable damages. In doing so, the chambers judge considered both lines of authorities and interpreted them in a consistent manner.
Even if these authorities are conflicting, the chambers judge may prefer one line of authorities to another, so long as his discretion is exercised judicially: Chaube v. Campbell, 2004 BCCA 85 at paras. 17-18. Further, this appeal will not settle the law as between this court and the Federal Court of Appeal. Thus, the proposed appeal is of little importance to the practice.
… The [respondent] would be unable to quantify the loss of reputation, consumer confidence and good will as a result of confusion in the marketplace.
There was evidence to support this finding of fact.
 The applicants contend that the appeal is important to them because they may suffer business losses and loss of customer confidence due to the need to repackage their products and delay in an advertising campaign. The respondent was required to provide the usual undertaking as to damages (reasons at para. 39), although the entered order of the judge does not refer to this. The judge addressed the potential negative impacts of an injunction when considering the balance of convenience in the context of an alteration to the status quo.
… Whatever interim negative consequences may have to be borne, those should be borne by the party altering the status quo. This factor weighs heavily in favour of the [respondent].
 In my view, the real issue on the proposed appeal ââ‚¬â€œ whether the judge erred in granting an interlocutory injunction ââ‚¬â€œ is not substantively significant to the action. The applicants assert that with an interlocutory injunction in hand the respondent “will not need to press its case for a permanent injunction”. In my view, the respondent would be unwise to rest on the interlocutory injunction in lieu of proceeding efficiently with this action.
 In my view, there is a potential that the proposed appeal would hinder the progress of the action. Although I do not know what plans the parties have for organizing the action and, of course, that is a matter for the Supreme Court, there appear to be a number of specific legal issues that could be determinative of the action or could establish its legal framework and that might be addressed summarily. They engage many of the issues the applicants seek, in my view prematurely, to bring to this Court.
 In my view, it is not in the interests of justice to grant leave to appeal in this matter. I see no error in the judge’s statement of the legal criteria he was to take into account when determining whether to grant an interlocutory injunction. There was evidence on which he was entitled to make his findings of fact. The legal issues raised by the applicants should be addressed in the Supreme Court before they are considered by this Court.
This page has been generated using Mincov Legal Markup Language (“MLML”). While every effort has been made to ensure accuracy and currency of this document, Mincov Law Corporation makes no warranty, representation or undertaking, expressed or implied, nor does it assume any liability, direct or indirect, or responsibility for the accuracy, currency, usefulness or continued availability of this document.The official version of this document is located at http://www.courts.gov.bc.ca/jdb-txt/CA/13/05/2013BCCA0553.htm.

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Power systems are subjected to small–signal oscillations that can be caused by sudden change in the value of large loads. To avoid the dangers of these oscillations, the Power System Stabilizers (PSSs) are used. When the PSSs can not be effective enough, installation of the Thyristor–based compensators to increase the oscillations damping is a suitable method. In this paper, a Static Synchronous Series Compensator (SSSC) is used in Single–Machine Infinite–Bus (SMIB). To control the signal of the output voltage of SSSC, a robust controller is used. Also, we proposed a hybrid control method to adjust the PSS voltage using Teaching–Learning Based Optimization (TLBO) algorithm and Fuzzy Inference System (FIS). Objective functions of designing parameters are based on Integral of Time multiplied by Absolute value of the Error (ITAE). The time–variations of angular speed deviations are investigated in different modes, including: with SSSC/PSS, without SSSC/PSS, different input mechanical power, and different system parameters.
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NAPW wins cases and brings new constituencies to the fight for reproductive and social justice through our public education and strategic communications work.
In many areas of law and policy - pregnancy provides - an excuse to deny women their fundamental constitutional and human rights.
Securing reproductive health and rights for all people, including pregnant women, requires collaborative, intersectional work to eliminate racism and other forms of discrimination.
NAPW develops and implements a variety of public education and communications strategies to expose connections between issues – such as the efforts to prohibit women from having abortions, historic efforts to prohibit people from using alcohol, and current efforts to prohibit people from using certain drugs. NAPW identifies and challenges the less recognized attacks on Roe v. Wade and reproductive freedom through “personhood” measures, feticide laws, gender discriminatory advance directive laws, and drug policies that set precedent for using the criminal law system to address other public health issues such as pregnancy and pregnancy outcome.
NAPW inspires and informs. Through our public education efforts, we remind people that there are not two different kinds of women – those who have abortions and those who have babies. They are the same human beings just at different times in their lives. And, NAPW teaches that whether people identify as “pro-choice” or “pro-life” they have shared interests in ensuring the health and dignity of all pregnant women whatever the outcome of their pregnancies.
NAPW provides our expertise to a wide range of sources including national media, local newspapers, online outlets, medical journals and documentary film. NAPW also speaks to diverse audiences at conferences, continuing education programs, forums and other gatherings. We also produce our own videos and sponsor Webinars such as Racism, Reproductive Justice, & the Monument to Dr. J. Marion Sims. In addition, we use our resources to support local activists to write and publish in their own communities.
NAPW conducts research and produces articles and commentary that help us win cases and debunks the junk science and medical misinformation used to undermine the reproductive health, rights and personhood of pregnant women. Through our public education efforts, we expose decades of misinformation and political posturing about pregnancy and drug use and take every opportunity to correct the misinformation behind destructive and dehumanizing stereotypes about pregnant women, drug users, and the Black, Brown and rural white mothers disproportionately targeted for state surveillance and control.
NAPW also organizes and sponsors catalytic conferences and continuing legal education programs that have sparked new collaborations, spurred the creation of new organizations and motivated new people to take action for reproductive and social justice. Our first major conference in 2002 addressed the broad implications for all pregnant women (not just those seeking to have an abortion) of establishing separate rights for fertilized eggs, embryos and fetuses. In 2007, NAPW organized an unprecedented National Summit to Ensure the Health and Humanity of Pregnant and Birthing Women, that brought together advocates for both birthing rights and abortion rights, recognizing that the same women who have abortions also give birth and all have shared interests in ensuring the health and rights of pregnant women. We have also held major continuing education programs in New York and Tennessee giving people working in the fields of child welfare and criminal law the opportunity to hear from actual experts on issues relating to pregnant women and drug use. Our New York program resulted in much greater and more zealous advocacy for low-income mothers in the child welfare system and our conference in Tennessee, co-sponsored by the National Perinatal Association, helped bring about the end of Tennessee’s Fetal Assault Law in 2016. That law had authorized the arrest of women in relationship to their pregnancies for such things as attempting to have an abortion and using any amount of any controlled substance.
Stay informed about NAPW's work, opportunities for activism and learning through our website; Activist Updates, and social media.
From October 7th to October 9th, 2014 Lynn Paltrow, NAPW Executive Director, met with lawyers, students, activists, coalition-builders, and local leaders in Charleston, Columbia, and Greenville, South Carolina to advocate for the issues of reproductive justice that NAPW, New Morning Foundation, Tell Them SC, and the South Carolina Coalition for Healthy Families have long been working to address. For more information about Ms. Paltrow's talk at the College of Charleston, visit http://www.tellthemsc.org/lynn_paltrow_lecture_cofc.
On Wednesday, October 1, 2014, NAPW’s Research & Program Associate, Laura Huss, gave a webinar as part of the National Women's Law Center (NWLC) and Law Students for Reproductive Justice (LSRJ) Webinar Wednesday series, “If You Care About Pregnancy Discrimination, You Should Care About Reproductive Justice.” The webinar included Laura from NAPW, Cherisse Scott from SisterReach, Keely Monroe at LSRJ, and Kelli Garcia at NWLC. The webinar and the accompanying slideshows are now archived and available to listen here.
NAPW's Soros Justice Fellow, Kylee Sunderlin JD, spoke at the 2014 Students for Sensible Drug Policy (SSDP) Conference in Arlington, VA. On Sunday, September 28, 2014, Ms. Sunderlin presented on the following two panels: (1) Unique Perspectives: The Hidden Consequences of the War on Drugs, and (2) What About the Children?: Families and the War on Drugs. Ms. Sunderlin brings unique expertise to NAPW in civil child welfare and drug policy, specifically related to opioid use and neonatal abstinence syndrome.
Check out the SSCP2014 Conference website for more information about the weekend.
NAPW's Staff Attorney, Farah Diaz-Tello, and Board President, Jeanne Flavin, gave an evening lecture at Texas Christian University on Monday, September 15th on "Seeking Justice for Women and Families: An Academic and Activist Partnership." This event was co-sponsored by the University's Women and Gender Studies, the Departments of Social Work, Sociology, Philosophy, Political Science, and Women’s and Men’s Programs. Visit this webpage for more information.
The weekend of July 25 - 28, 2014, NAPW's Director of Legal Advocacy, Sara Ainsworth, and Research & Program Associate, Laura Huss, attended and spoke at the "Standing Our Ground: Raising Our Voices against Reproductive Oppression and Violence against Women" conference and rally in Jacksonville, Florida. Hosted by SisterSong and the Free Marissa Now Campaign, this weekend included a Reproductive Justice 101 training, a Reproductive Justice Institute, and a direct action march. The march to the Duval County Unified Courthouse was an effort to stand in solidarity with Marissa Alexander and in opposition to the reproductive injustices that this case and legislation has made public.
NAPW Soros Justice Fellow, Kylee Sunderlin, attended the Whitehouse/Portman Senate Women & Addiction Forum sponsored by Senators Sheldon Whitehouse (D-RI), Rob Portman (R-OH) and Kelly Ayotte (R-NH).
The forum included nationally-recognized researchers, practitioners, policymakers and Members of Congress to help identify policy priorities to help women in treatment for addiction and their recovery. The event highlighted three key issue areas to be addressed: Women and Addiction: Treatment & What Works; Women, Addiction and Motherhood; The Role of Trauma as a Factor Contributing to Addiction, and Relapse & Recidivism in Women. This was the second in a series of bipartisan convenings to help identify a strategy to elevate and advance addiction treatment and recovery nationwide and develop an agenda for the next Congress.
On Saturday, May 17, 2014, NAPW Executive Director, Lynn Paltrow, spoke in Vancouver, BC, Canada on “Challenging Drug Prohibition & The Regulation of Reproduction and Mothering.” More information about this free public forum can be found here. The event was sponsored by the SFT Centre for the Study of Gender, Social Inequities, and Mental Health & the Canadian Drug Policy Coalition.
NYU School of Law Carr Center for Reproductive Justice - NYU School of Law Reproductive Justice Clinic - held their first annual conference on April 1, 2014: "Reproductive Rights Law: Where is the Woman?" NAPW's Executive Director, Lynn Paltrow, was a featured speaker at the conference. Visit the conference website for further information.
If you were unable to attend, you can now stream or download the MP3 recording of this powerful evening here.
Also watch NAPW's short video that premiered that evening here: "Project Prevention: Mothers and Children Speak Out"
On October 10, 2013 at 11:30 am, Lynn Paltrow, NAPW Executive Director, will give a common hour lecture at Franklin & Marshall College in Lancaster, Pennsylvania. Ms. Paltrow's lecture is sponsored by the College's Department of Women's & Gender Studies and will focus on "Roe v. Wade and the New Jane Crow: Reproductive Justice in the Age of Mass Incarceration."
The event is open to the public and will occur at the Mayser Gymnasium. Visit the event's webpage for more information.
Lynn Paltrow speaking opportunity: "40 years after Roe v. Wade: Reproductive Justice in the Age of Mass Incarceration"
Consider bringing NAPW Executive Director, Lynn Paltrow, to your campus to discuss: "40 years after Roe v. Wade: Reproductive Justice in the Age of Mass Incarceration" Roe v. Wade: What does it mean today? How can you make it relevant to all generations and communities?
On June 26, 2013, at Butler University in Indianapolis, IN, Demia (Butler University’s student chapter of the Feminist Majority Leadership Alliance); Gender, Women's, and Sexuality Studies at Butler University; and Indiana Religious Coalition for Reproductive Justice (IRCRC) co-hosted a community education event entitled "Experts Discuss Suicide, Mental Health, and Healing: What Helps and Should Pregnant Women Be Treated Differently?"
Experts Dr. Laura Miller, Stephen C. McCaffrey, and Dr. Brownsyne Tucker Edmonds spoke about suicide, mental health, and healing and their relationship to the Bei Bei Shuai case that is set for trial in September 2013.
NAPW co-sponsored the event along with 12 other local and national organizations: American Congress of Obstetricians and Gynecologists; American Foundation for Suicide Prevention, Indiana Chapter; Backline; Demia (Butler University student chapter of the Feminist Majority Leadership Alliance); Gender, Women's, and Sexuality Studies at Butler University; Indiana Religious Coalition for Reproductive Justice (IRCRC); Law Students for Reproductive Justice at Indiana Maurer School of Law; Mental Health America of Indiana; National Alliance on Mental Illness Indiana; National Organization for Women, Indiana Chapter; National Perinatal Association.
NAPW reported on the success of the event here, and the video archive of the forum is available to watch here on NAPW’s website.
On June 25, 2013, Executive Director, Lynn Paltrow, spoke at the Innocence Project's summer brown bag lunch lecture series that welcomes summer interns from a variety of local organizations. NAPW's summer intern class - including legal and non-legal students - attended Ms. Paltrow's talk, as well as each weekly talk this summer by leaders in the fields of social, criminal, and reproductive justice.
The University of Michigan hosted a Reproductive Justice conference from May 29 - May 31, 2013 on "Reproductive Justice: Activists, Advocates, Academics in Ann Arbor." NAPW Executive Director, Lynn Paltrow, and Jeanne Flavin, NAPW Board President & Fordham University Professor of Sociology, attended the conference and spoke on a panel about "Cultivating Collaborations: Academics and Advocates Discuss Partnerships." Additionally, Ms. Paltrow led a working session on "Mass Incarceration, 'War on Drugs,' and Reproductive Justice." Further information about the conference can be found on this website.
MSNBC News Anchor Thomas Roberts planned to host NAPW Executive Director, Lynn Paltrow, live on Tuesday, May 28th. The interview has been postponed as a result of the recent updates on Trayvon Martin's upcoming trial. We will post about the rescheduled interview date when Lynn will speak to Thomas Roberts about the arrests of and forced interventions on pregnant women and the Mississippi Supreme Court case of Nina Buckhalter.
On May 20, 2013, WORTH (Women on the Rise Telling HerStory) hosted a conference entitled "From Punishment to Wellness" addressing a public health approach to women and the war on drugs. This conference, hosted by the New York Academy of Medicine (NYAM), came out of the recent publication by NYAM and the Drug Policy Alliance - "Blueprint for a Public Health and Safety Approach for Drug Policy." NAPW supported the conference as a community partner and assisted in conference planning. Lynn Paltrow, NAPW Executive Director, also appeared on a panel about "Aligning Policy to a Public Health Approach." The successful conference hosted about 250 attendees. See conference flyer below and download conference program here.
On Saturday, April 26, 2013, SUNY New Paltz Women's, Gender, and Sexuality Studies program hosted a conference on "Reproductive Justice - 40 Years After Roe v Wade." NAPW Staff Attorney, Farah Diaz-Tello, spoke on a panel entitled "Beyond Whether to Bear or Beget: Protecting Pregnant and Parenting Women" with former NAPW Director of Legal Advocacy, Emma Ketteringham, and former NAPW Inter, Dinah Adames.
NAPW Executive Director Lynn Paltrow gave a public lecture at Princeton University on Wednesday, April 24, 2013 entitled: "Forty Years After Roe v. Wade: Reproductive Justice in the Age of Mass Incarceration."
In a two-part continuing legal education (CLE) program at the Queens County Bar Association's Child Welfare Court Improvement Project, NAPW Executive Director, Lynn Paltrow, conducted two events with an expert and attorney about drug use and the child welfare system.
On April 23, 2013 Ms. Paltrow lead the program with Managing Attorney of Bronx Defenders Family Defense Practice, Emma Ketteringham, (also former NAPW Director of Legal Advocacy) to address "Considering the role of race and drug policy in child protective cases." The second event on Wednesday, May 22, 2013, was conducted with Columbia University Assistant Professor and Research Scientist, Dr. Carl Hart, PhD, about "Drug Use, Drug Effects, and the Role of Science and Experts in Child Protective Cases."
Lynn Paltrow, Executive Director, spoke as a keynote speaker on April 5, 2013 at the New Jersey Women's and Gender Studies Consortium event at Georgian Court University in Lakewood, New Jersey. This consortium works to maintain the strength, visibility, and development of interdisciplinary women's and gender studies at numerous New Jersey colleges and universities.
On Wednesday, March 27, 2013 at 7:00 pm, Executive Director Lynn Paltrow spoke at Butler University's Diversity Program Women's History Month lecture series. Her talk, "Indiana and the New Jane Crow: The Prosecution of the Bei Bei Shuai," was promoted and reported by local media The Indianapolis Star's 해외사이트 순위Tim Evans and Diana Penner, respectively. Thursday, March 28, 2013 she was the keynote speaker at IPFW's Women's Studies Program's "Women's Reproductive Rights: A Historical and Global Perspective" event series for Women's History Month speaking on "Forty Years after Roe v. Wade: Reproductive Justice in the Age of Mass Incarceration." Her final event on Friday, March 29, 2013 at Indiana University's Mauer College of Law in Bloomington, IN was hosted by IU's Law Students for Reproductive Justice (LSRJ), Feminist Law Forum (FLF), and the American Constitution Society (ACS), entitled "Indiana and the New Jane Crow: Using the Prosecution of of Bei Bei Shuai to Create a System of Separate and Unequal Law for All Women."
NAPW continued to support the organization and planning of the Third Annual Take Root: Red State Perspectives on Reproductive Justice Conference.
The successful conference took place from February 15-16, 2013 in Norman, Oklahoma, with over 250 "red state" activists advocating for Reproductive Justice. NAPW attended and spoke at the conference and supported first-time "red state" advocates to also attend.
Read media about the event's success and impact. We look forward to next year's fourth annual - February 21-22, 2014!
On January 25, 2013, NAPW Executive Director, Lynn Paltrow, and National Latina Institute for Reproductive Health (NLIRH) Executive Director, Jessica Gonzalez-Rojas, appeared on Moyers & Company. Bill Moyers interviewed Lynn and Jessica after the 40th Anniversary of Roe v Wade to examine and discuss the issues behind the reproductive rights debate.
In advance of the 40th anniversary of Roe v. Wade on January 22, 2013, the Center for American Progress (CAP) held a lively debate on January 16, 2013 on the strategies reproductive rights activists can use over the next 40 years to secure the full promise of Roe. As our country’s demographics rapidly change, what does Roe mean to the rising electorate? What does the base of supporters look like now and in the future? How will the success in securing near-universal contraceptive coverage affect the landscape? What strategies can be employed—legal, policy, organizing, communications, and more—to engage new supporters and to ensure that Roe provides meaningful protections for all women?
NAPW Executive Director, Lynn Paltrow, spoke at the Central European University (CEU) in Budapest, Hungary on December 6, 2012 at 5:30pm.
Her talk focused on "Drug Policy and the Rights of Pregnant Women and Children" and engaged members of Open Society Foundation, CEU students and faculty, and local activists.
Farah was featured in a documentary, "Freedom for Birth," about the human rights of pregnant women and the Human Rights in Childbirth conference in the Hague in March of 2012. The documentary premiered on Sept 20, with nearly 900 screenings throughout the world. Farah attended the New York City screening at the Museum of Motherhood, and spoke about NAPW's birth justice work on a panel after the film with sociologist Barbara Katz Rothman, journalist Jennifer Block, and attorney Elitsa Golab of the International Cesarean Awareness Network for an audience of 75 birth workers. Visit the website and watch the documentary here.
Felipe Luciano interviews Lynn and discusses mother's rights, racism, and the new war on reproduction. To listen to the show download here.
Megan McKenzie is a strong, resilient woman who had the courage to fight back when the State of South Carolina charged her with both civil and criminal child abuse for giving birth to a healthy, beautiful baby. The state claimed her newborn tested positive for marijuana, and while Ms. McKenzie didn't test positive for marijuana and more importantly she was providing loving, excellent care for her daughter, the prosecution and so-called child protective services proceeded with their actions against her. NAPW was part of the team that helped Megan McKenzie fight back and, eventually, win. As a result of her experiences, Megan has become a fierce advocate on behalf of other women who are similarly experiencing punitive state interventions and, as demonstrated in this BBC interview, is increasingly becoming a national and international spokesperson on these issues. She is pictured above speaking at NAPW's recent 10th Anniversary celebration.
Read the essay Killing for Life Returns by Dr. Carol Mason, author of the book Killing for Life and Oklahoma-based NAPW board member.
Obama, the Bishops and the "Right to Life"
Read Lynn Paltrow's latest commentary on The Huffington Post.
The continuing education program Drugs, Pregnancy and Parenting: What the Experts in Medicine, Social Work and the Law Have to Say was held on February 11, 2009 at the NYU School of Law. The program was co-sponsored by National Advocates for Pregnant Women, The NYU Silver School of Social Work and NYU School of Law. The following is a list of materials distributed during the program which may be useful for those who would like to learn more about issues covered in the program.
If you are interested in making a 해외사이트 순위 you may indicate that the donation is for a copy of the CLE program book in the comments section and we will send you a complimentary copy of these materials.

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By: Rebecca L. Smith, Esq.
A compensable occupational disease requires that the claimant satisfy two tests. First, the claimant must satisfy an objective test requiring the claimant to show either that (1) the disease is an occupational disease, due to the nature of the employment in which the hazards of the disease actually exist, or (2) the disease and its manifestations are consistent with those known to result from a given physical, chemical, or biological agent attributable to the employment. Second, the claimant must prove disablement.
Due to the presumption, most employers do not contest that the hypertension is work-related, unless there is clearly another cause for the illness. For example, if a Maryland State Trooper files a workers’ compensation claim for hypertension after he/she has been charged with violating a provision of the Administrative Manual, or after a significant family event not related to the employment, or a financial hardship, the insurance company may be more inclined to question whether the hypertension is the result of the employment or the stress of other major life events.
What is often unclear for Maryland State Troopers who file a hypertension workers’ compensation claim is whether that occupational disease has caused disablement. The Workers’ Compensation Act defines disablement as the event of a covered employee becoming partially or totally incapacitated.[ix] Incapacity may take on four main forms: (1) temporary partial incapacitation; (2) temporary total incapacitation; (3) permanent partial incapacitation; or (4) permanent total incapacitation.[x] The incapacitation must be related to the employee’s ability to perform whatever work that employee was engaged in last.[xi] Although the definition of incapacity seems clear, and, in fact, in the context of an accidental injury it would be entirely clear, the Workers’ Compensation Commission has yet to outline a precise rubric for determining disablement for police officers suffering from hypertension. Most insurance companies will argue that if a Maryland State Trooper does not miss time from work, he/she is not incapacitated and thus, there is no disablement.
For instance, in Helinski v. C & P Tel. Co., the Maryland Court of Special Appeals found that “an incapacity to work in one set of conditions applicable to a particular job does not necessarily indicate or equate with incapacity to perform the work in an occupation. Whether a disablement suffices to be occupational in scope would depend, at least in part, upon how the occupation is defined and how much of the range of activity fairly included within the occupation is in fact foreclosed to the claimant. If, indeed, the claimant is able to continue to perform reasonably analogous work within the same occupational classification at the same or higher wages, he is not incapacitated from performing his work in the last occupation.” Thus, according to Helinski, a Maryland State Trooper who suffers from hypertension may not be disabled if he/she can continue to perform his/her duties for the same or higher wages, regardless of whether he/she cannot do all of the same duties for that specific assignment.
Maryland courts have also determined that an employee is not incapacitated within the intent of the law if, although injured, the employee has the capacity and ability to perform his/her regular work, and actually continues to perform his/her regular work for which he/she is employed.[xii] For example, a Trooper who claims that he/she suffers from an occupational disease but, despite that disease, continues to work under the same conditions, may not be disabled as defined by statute. In order to prove disablement, the Trooper would have to be unable to perform the required functions of his/her assignment and, in fact, stop performing his/her regular work.
Miller also cautioned that strict adherence to a “wage loss requirement” to determine whether an employee is actually incapacitated may lead to absurd results. Specifically, it may deprive a physically-disabled worker of a workers’ compensation award, which essentially penalizes the workers’ laudable efforts to keep working. Furthermore, such a requirement would promote the fiction that a worker, simply because of his/her level of earnings, is not suffering from permanent partial disability.
In order to be successful in a workers’ compensation claim for hypertension, Troopers must be able to prove that they are disabled. If the Trooper is feeling symptomatic at work, he/she should handle the matter quickly. In a typical, successful workers’ compensation claim for hypertension, a Trooper who begins to experience symptoms associated with hypertension would see a physician immediately, regardless of whether that Trooper is mid-shift or about to start a shift. If the Trooper actively seeks medical treatment for any symptoms and that those symptoms are affecting the Trooper’s ability to perform his/her duties, it is much easier to convince the employer that the Trooper is disabled within the meaning of the statute. In addition, seeing a physician when the Trooper is symptomatic, the medical records asst in documenting the issues and it supports a claim of factual disability. If a Trooper misses work because of hypertension, the Trooper would, if possible, see a physician that same day and should ensure that the necessary forms are completed for the Maryland State Police in a timely fashion. The forms should clearly reflect the cause of taking sick leave.
It is an open question as to whether a Trooper who suffers from hypertension, who does not miss time from work, but who cannot complete all of the essential functions of a Trooper, is disabled. If a Trooper is able to perform all of the essential functions of a Trooper, but does not perform those duties as well as he/she would have absent hypertension symptoms, the Trooper may be disabled. Additionally, a Trooper who is no longer able to run long distances due to hypertension and shortness of breath may not be deemed to be disabled if the Trooper is able to perform all other duties. The simplest way to prove disablement is when the Trooper sought medical attention immediately after experiencing symptoms, he/she missed work because of those symptoms and/or treatment, and once the Trooper returns to work, they cannot perform the duties as well as before the hypertension.
Although Troopers enjoy a presumption that hypertension is work-related under workers’ compensation law, Troopers must also prove that the hypertension has caused disablement. Disablement is not simply feeling ill and pushing through the day until the Trooper can treat the symptoms at home. Disablement means that a Trooper who suffers from hypertension cannot continue to perform his/her duties for the same or higher wages, regardless of whether he/she cannot do all of the same duties for that specific assignment.
Troopers should keep in mind that the purpose of workers’ compensation is to ensure that the injured employee receives necessary medical care and to compensate those injured workers who suffer from any permanent disabling effects of injury. If a Trooper begins to have symptoms associated with hypertension, and those symptoms are affecting his/her ability to perform his/her duties, he/she should see a doctor immediately and complete the necessary Maryland State Police forms associated with any illness.
[i] City of Frederick v. Shankle, 367 Md. 5, 8 (2001).
[ii] Md. Code Ann, Lab. & Empl. § 9-503(b)(1).
[iii] Montgomery County v. Pirrone, 109 Md. App. 201 (1996).
[viii] Montgomery Co. Fire Bd. V. Fisher, 298 Md. 245, 257 (1983).
[ix] Md. Code Ann, Lab. & Empl. § 9-501(a).
[x] Md. Code Ann, Lab. & Empl. §9-101(g). See also Helinski v. C & P Tel. Co., 108 Md. App. 461, 472 (1996).
[xi] Helinski, 108 Md. App. at 470.
[xii] Smith v. Howard County, 177 Md. App. 327, 336 (2007) (citing Belschner v. Anchor Post Productions, Inc., 227 Md. 89, 93 (1961)).
[xiii] Miller v. Western Elec. Co., 310 Md. 173 (1987).
[xv] The Trooper’s failure to notify the Maryland State Police within one year of the employee knows or has reason to know that the hypertension is work-related bars a claim for compensation unless the Commission excuses the failure on the ground that notice, for some sufficient reason, could not have been given, or that the employer or insurer suffered no prejudice from the lack of notice. Md. Code Ann, Lab. & Empl. §§ 9-404(d), 9-705(b), 9-706(a).
[xvi] Md. Code Ann, Lab. & Empl. § 9-711.
[xviii] Montgomery County v. Pirrone, 190 Md. App. 201, 210 (1996).

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