Industry committee  On prescription medicines, with the increased enforcement powers given to the Canada Border Service Agency, one of the things that we would recommend is increased cooperation with Health Canada and their inspectors, who I think are the real experts. There needs to be well-established protocols between the CBSA and Health Canada to allow for quick and effective determination of—

Industry committee  It would make it far more efficient. Often it's not immediately obvious whether these are counterfeit medicines or not. An inspector or group could really bring that expertise to bear. I think that's a recommendation we would make.

Industry committee  Correct.

Industry committee  This definition has been in the current act for more than 50 years now.

Industry committee  That's correct. These trademark cases around trade dress in pharmaceuticals have been interpreted many, many times through the opposition board and then on to the Federal Court and even up to the Supreme Court, which has commented that the definition of distinctiveness is critical to the whole Trade-marks Act.

Industry committee  The explanation we were given is that they had gone to the international agreement, the trade-related intellectual property agreement, and tried to incorporate some of the elements from that into the Canadian law. In our view, they actually didn't do that entirely correctly. But more fundamentally, the wording is quite different.

Industry committee  I think that's right. The TRIPS agreement is signed by more than 120 countries. The wording is intended to be general, reflective of common-law countries, civil-law countries, many varying systems of business law, etc. There's no suggestion that everyone has to change their law to be exactly, word for word, what's in the TRIPS or any other trade agreement.

Industry committee  That's correct. We are proposing changes to the current act, changing the word “means” to “describes”, and changing the word “wares” to “goods”. I think they're minor modifications and more reflective of current terminology. We believe that's sufficient for the changes, yes.

Industry committee  No, I'm not familiar with that particular case. I'd be happy to look at it. But I would say again that—

Industry committee  I would say that in general, in the prescription pharmaceutical industry, you're dealing with entities that are highly regulated. All manufacturers, wholesalers, distributors, and retail pharmacies are licensed. They need establishment licences, and they are inspected by Health Canada.

Industry committee  Correct. Our legal analysis shows that, first of all, there have been dozens and dozens of cases in the trade dress area in pharmaceuticals. Consistently the courts have said that for trademarks relating to the physical appearance of a pharmaceutical dosage form, the tablet, they can get registered only where the product appears that it actually distinguishes the applicant's pharmaceutical from those of others.

Industry committee  That's what we're hoping, yes, that they would agree that the type of amendment we're proposing is a reasonable one that would not in any way change the intent of the bill.

Industry committee  Just before I answer that, I can also say that we use one of Mr. Lipkus' other sons as a lawyer who advises our industry sometimes. They are very good lawyers.

Industry committee  On the definition of “distinctive”, the phrase that we are suggesting be taken out of Bill C-8 is the phrase “inherently capable of distinguishing”. Why we think that introduces uncertainty is simply that under the current law it's been made clear that you have to demonstrate that a trademark actually is distinctive.

Industry committee  I think it's that a pharmaceutical application for a pharmaceutical trade dress would now argue that my particular medication, the look of it, the little triangular blue pill, may not yet have become “distinctive”, but it is inherently capable of being distinctive, and therefore I should get a trademark, with all of the rights flowing from that.