Bill C-8 (Historical)

Combating Counterfeit Products Act

An Act to amend the Copyright Act and the Trade-marks Act and to make consequential amendments to other Acts

This enactment amends the Copyright Act and the Trade-marks Act to add new civil and criminal remedies and new border measures in both Acts, in order to strengthen the enforcement of copyright and trade-mark rights and to curtail commercial activity involving infringing copies and counterfeit trade-marked goods. More specifically, the enactment
(a) creates new civil causes of action with respect to activities that sustain commercial activity in infringing copies and counterfeit trade-marked goods;
(b) creates new criminal offences for trade-mark counterfeiting that are analogous to existing offences in the Copyright Act;
(c) creates new criminal offences prohibiting the possession or export of infringing copies or counterfeit trade-marked goods, packaging or labels;
(d) enacts new border enforcement measures enabling customs officers to detain goods that they suspect infringe copyright or trade-mark rights and allowing them to share information relating to the detained goods with rights owners who have filed a request for assistance, in order to give the rights owners a reasonable opportunity to pursue a remedy in court;
(e) exempts the importation and exportation of copies and goods by an individual for their personal use from the application of the border measures; and
(f) adds the offences set out in the Copyright Act and the Trade-marks Act to the list of offences set out in the Criminal Code for the investigation of which police may seek judicial authorization to use a wiretap.
The enactment also amends the Trade-marks Act to, among other things, expand the scope of what can be registered as a trade-mark, allow the Registrar of Trade-marks to correct errors that appear in the trade-mark register, and streamline and modernize the trade-mark application and opposition process.

[Judy Sgro, Liberal, York West, ON]

The issues in and around the RCMP and CBSA continue to have some significant challenges themselves. Are you satisfied, based on the amount of time you've spent on these kinds of counterfeit issues and the number of border crossings we have and so on that they have sufficient knowledge and manpower to be able to make a significant dent if they have Bill C-8?

[Lorne Lipkus]

Well, Bill C-8 creates a mechanism whereby you have to go to court, and the existing simplified procedure regimes also have a very similar regime for going to court when there's a dispute.

The point that people like me are making is that if there is no dispute, let's not go to court. Those are the cases that we have to get rid of. Those are the cases that I think are going to cost the government, cost the taxpayers, cost customs a lot of money to go after.

A simplified procedure will save everybody money.

[Judy Sgro, Liberal, York West, ON]

Yes, it just seems like that isn't the simplest way to deal with it. You call it a simplified regime versus an administrative regime, but it does seem a much simpler way of dealing with a problem than the way we're doing it in Bill C-8.

[Judy Sgro, Liberal, York West, ON]

In this industry portfolio, I suspect we will see a lot of lawyers. Maybe we should see a few more theologists; it might be more helpful as we move forward.

There have been quite some serious health and safety issues raised by many of the panellists we've had a chance to see. That very much concerns me.

Mr. Keon, you can elaborate more on Mr. Holder's question.

On the case law that's already been established as a result of years and years of litigation, with the changes being proposed in Bill C-8, it seems to be your feeling that unless amendments are done to change further that issue of “distinctiveness”, it will lead to more litigation, which may be great for Mr. Lipkus and his sons and others, but I'm not sure that it's necessarily good for the taxpayer. Is that correct?

[Ed Holder, Conservative, London West, ON]

From your perspective, what's the implication if the definition remains the same as suggested in Bill C-8? You talked about litigation, but what's the other specific use?

[Jim Keon]

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. In the pharmaceutical industry, where wording matters, and issues of technical definitions matter and are litigated extensively, putting in a new concept there, we believe, will open up more litigation, more uncertainty. That particular phrase is what our law firms have flagged for us.

[Ed Holder, Conservative, London West, ON]

Well, I'm getting it a bit more, so I thank you for that. I look forward to reading more of your formal representation on that, which is a nice segue to Mr. Keon.

Mr. Keon, it looks like you're talking specifically to one issue as it relates to the Trade-marks Act. It didn't sound to me like you didn't want to modernize the Trade-marks Act, you just wanted to make sure that it was not counter to the tradition you've had with regard to generic drugs.

Here's my question. I look at page 3 of your presentation, and I'm a little confused. Mine's just a philosophy degree, so I have to read this a little more carefully. As I see this, there are two sets here on page 3, at the very bottom. There's the CGPA proposal compared to the definition of Bill C-8. There is the definition of Bill C-8 compared to your proposed revised definition. Then below that is your proposal compared to the definition in the current act, where you have the definition of the current act versus the proposed revised definition.

From your perspective, where are you going? Where would you like to see this? I think it really does centre on the point you made about “distinctive” in relation to a trademark, and that which is inherently capable of distinguishing and so on. That is your definition concern. I see a couple of proposals here. From the standpoint of your association, where are you looking to take this?

[Jim Keon]

Bill C-8 does not include in-transit goods as part of the “in scope” activities the Canadian Border Services Agency would be looking at. We think this is appropriate; we're not in favour of expanding those powers beyond the scope of the current bill.

Pharmaceuticals trade around the world. Many companies, brand name and generic, buy inputs from around the world, manufacture in one location, and package and distribute in others. In some cases, trademarks law and patent law can be different. If the product is not coming into Canada for sale in Canada, then asking the Canadian Border Services to interpret the product according to Canadian law is inappropriate, and has led in the past, as you indicated—in Europe in particular—to seizure of legitimate products, delays of those products, extra costs, and uncertainty, and in some cases has resulted in companies changing the way they distribute products. I don't think that's the intent here.

We support Bill C-8 in that regard and would not recommend any change.

[Vladimir V. Gagachev, Manager, Regulatory Affairs, Electrical Sector, Eaton Industries (Canada) Company]

Thank you, Mr. Chair.

Honourable members, thank you for the opportunity to appear before you today.

My name is Vladimir Gagachev. I am a professional electrical engineer employed by Eaton Industries (Canada) Company, the Canadian operations of Eaton Corporation, based in Burlington, Ontario.

We manufacture electrical equipment and systems that range from 120 volts to 46,000 volts. My company employs about 1,200 Canadians in manufacturing facilities located in most Canadian provinces and in sales and field services offices in each major city across Canada.

The whole electrical industry in Canada and across all of North America faces grave challenges from reconditioners who place counterfeit labels on electrical products and from product counterfeiters, both domestic and foreign. While this unlawful activity impacts our businesses, there is a far more serious impact and danger to our citizens here in Canada. Unsafe and dangerous electrical products are being installed in facilities that cannot only cause significant property damage but also have life-threatening effects. Electrical shocks and fire hazards can result when an electrical product does not perform as a consumer expects from reading the label on the product. This consumer can be a trained electrician relying on the information contained in labels on the product. Consequently, counterfeit labels and/or products with false labelling can lead innocent users to believe, albeit incorrectly, that they are dealing with a safe product.

Canadian manufacturers of electrical products, represented by Electro-Federation Canada, recognize the seriousness of grave issues with both domestic relabelling, which is outright counterfeiting, and international product counterfeiters. Please allow me to explain.

About 16 years ago we found an electrical product reconditioner selling unauthorized circuit breaker products. Using private investigators we purchased some of these breakers. Subsequent laboratory analysis concluded that the investigators purchased used circuit breakers being passed off as new. These breakers were likely salvaged from demolition sites in questionable circumstances, tampered with and relabelled to change the electrical ratings of the breaker, which is extremely serious and dangerous. The new labels also included trademarks of certification organizations, such as the Canadian Standards Association and the Underwriters Laboratories, along with the original equipment manufacturer’s counterfeited labels.

Subsequent litigation in the Federal Court of Canada with one such counterfeiter has had no impact on this counterfeiting activity in Canada. Over the past 15 years, examples of these dangerous electrical devices have been found in the intensive care unit of a hospital, a grocery store, and even in schools. This problem, like cancer, is appearing to grow and spread, threatening the electrical safety integrity of our country.

We have been involved with our industry’s attempts to stop this activity for the past 13 years. It still continues, and we need your help by bringing Bill C-8 into law.

About 11 years ago, the Royal Canadian Mounted Police agreed to act on a formal complaint logged by Eaton. That complaint was based upon a discovery of a counterfeit-labelled moulded-case circuit breaker, MCCB for short, supplying power to the intensive care unit of a Quebec City hospital. Other investigations and seizures found similar cases of counterfeit and tampered circuit breakers in hospitals. These investigations culminated in search and seizure operations against three suspected businesses, with charges being laid in two instances. The charges brought were forgery and passing off under the Criminal Code, for lack of better provisions in the Trade-marks Act.

In the cases where charges were laid, the perpetrators pleaded guilty. In the first case, the defendant was fined $76,000. In the second case, a fine of $40,000 was assessed, along with an unconditional discharge. The third case was not prosecuted because the crown did not believe there was sufficient evidence to bring charges.

Another firm, sued by Eaton in 2000 in civil court with a favourable judgment, has been charged by the crown in new criminal proceedings. The trial has been set for early 2014 in a Montreal court.

Eaton's manager for codes and standards at that time, Brian Savaria, professional engineer, appeared as a witness before this standing committee and testified on these very issues on April 30, 2007.

However, this problem continues. Are you sure your electrical system will function as it was intended? As long as Canada has electrical retailers selling suspect reconditioned products from unauthorized sources, how do we know they have not been tampered with? We cannot possibly check them all. We do check the ones that look suspicious, but with the state-of-the art copying technologies nowadays there should be serious concern about this issue.

During the course of 2011, 2012, and 2013, Eaton, Schneider Electric, and Siemens helped Public Works and Government Services Canada in the inspection of electrical panels in thousands of buildings across the country. A large number of counterfeit-labelled moulded-case circuit breakers were identified and designated for removal from panels in federal buildings and airports. I believe the number approached almost 150. A couple of representative examples have been submitted with this testimony. They should be in your package. If this is the situation with the largest landlord in Canada, then, by extension, it will be similar to any other commercial or industrial property, etc., in the country.

The international counterfeiting problem that was referred to earlier is equally serious, in that Asian copies of circuit breakers are being made and widely distributed at trade fairs and on the Internet. There are many Chinese websites purportedly offering genuine circuit breaker products. Your information package also includes a photograph example of what happens when an electrical circuit breaker fails. In this case, it shows a Chinese residential breaker seized by U.S. Customs failing the Underwriters Laboratories standard test. As you can see, the results are catastrophic.

I shall now play you a quick video—it's only 11 seconds—of a mining circuit breaker.

[Video Presentation]

I shall spare you the technical details of what just happened. I'll just say, imagine this happening in a mine where methane and whatnot gases are present

The Canadian Electrical Code defines “circuit breaker” as “a device designed to open and close a circuit by non-automatic means and to open the circuit automatically on a predetermined overcurrent without damage to itself when properly applied within its ratings.” Circuit breakers are absolutely essential devices in the modern world and are one of the most important safety mechanisms in homes and other buildings. Whenever electrical wiring in a building has too much current flowing through it, these devices interrupt the power until somebody can attend to the problem.

Without circuit breakers, or the alternative fuses, electrification would be impractical because of the potential for fires and other mayhem resulting from simple wiring problems and equipment failures. Counterfeit circuit breakers can potentially explode, cause fires, as you saw, or false trip. If that circuit breaker is on life support equipment in a hospital, the false trip would shut the equipment down and could kill the patient. In an airport control tower, a false trip can also be catastrophic. One of the examples in your package contains four counterfeit circuit breakers from the L.B. Pearson International Airport.

The spectre of substandard, defective, and counterfeit circuit breakers and domestically labelled circuit breakers with false information and settings entering into Canadian homes, stores, public buildings, schools, and hospitals poses a serious threat to a safe electrical infrastructure. It is a truly frightening situation that must be addressed. The Canadian electrical safety community has been on guard, and for many years it has been alerted to the potential hazards these products can cause.

Consumers are also looking for evidence that government views this as a serious problem that has consequences. I do like to think that I testify before you today, not only as a corporate employee but also as a father, a neighbour, a citizen. But of course the most credible spokespeople against counterfeit products would be the victims thereof, people whose health has suffered.

Thank you.

[Carla Ventin, Vice-President, Federal Government Affairs, Food and Consumer Products of Canada]

Food and Consumer Products of Canada welcomes the opportunity to contribute to the Standing Committee on Industry, Science and Technology's study of Bill C-8, the Combating Counterfeit Products Act.

FCPC is the largest national industry association in Canada, representing companies that manufacture and distribute food and consumer products. Our industry is the top employer in manufacturing in Canada, employing approximately 300,000 Canadians in 6,000 manufacturing facilities located in every region in Canada.

Our members represent a vast array of household products sold on grocery and drug store shelves across the country. I have distributed a handout that has some facts on our industry and that on the opposite side has a list of our member company logos.

We're very pleased that the government has taken action to address the growing presence of counterfeit products in the Canadian marketplace. Our industry's priority is the safety and integrity of our products, and we therefore welcome the introduction of Bill C-8.

We've become increasingly concerned with the growing presence of counterfeit and non-compliant products in Canada and have been raising awareness of this issue with the federal government for some time. Our primary concern is the impact on the health and safety of Canadians. We are also concerned about the negative impact on Canadian manufacturers, especially in terms of brand reputation.

FCPC is a proud member of Canadian Anti-Counterfeiting Network, which appeared before this committee on November 6 and which represents a coalition of individuals, companies, and associations that have united in the fight against product counterfeiting in Canada and abroad.

The provision of new authorities in Bill C-8 for border officers to detain suspect shipments and share this information with rights holders is a critical component of the bill. Importantly, the legislation allows for businesses to file a request for assistance with the government regarding suspect shipments. This new framework will, for the first time, allow border officers and rights holders to share information and work together. We fully support this collaborative approach.

As the government steps up its efforts at the border, additional resources will be required, and we would like to ensure that this requirement has been accounted for. The ability to enforce this legislation at the border will determine whether we succeed in decreasing the number of counterfeit products entering Canada.

We need to ensure that Bill C-8 strikes a reasonable and fair balance between law-abiding rights holders who play by the rules and those who profit at the expense and safety of others. Bill C-8 must deter this illegal activity while at the same time not place an unnecessary burden upon legitimate and law-abiding companies. There are a few areas in Bill C-8 in which we think this balance needs to be adjusted.

Our first concern deals with the financial burden and liability for charges.

Under proposed subsection 44.07(1) of the Copyright Act, the rights holder is responsible for costs associated with the storage, handling, and destruction of detained goods. We disagree that rights holders who play by the rules should pay for the costs associated with the illegal activity of others. Canadian manufacturers already face enormous challenges, and we oppose any new fees that unfairly burden law-abiding companies.

We fully support the Canadian Anti-Counterfeiting Network's recommendation to amend this provision so as to put primary responsibility for costs on the perpetrators of the crime instead of on the rights holders.

In the legislation, under the heading “OFFENCES AND PUNISHMENT”, we have concerns also about proposed subsection 51.01(1) of the Trade-marks Act, which outlines that a new trademark offence is limited to situations in which the perpetrators know not only that the goods are counterfeit but also that the acts of sale and distribution that they are undertaking would be contrary to the law.

Obtaining proof that counterfeiters knew they were selling illegal products and were also aware that their activity is illegal will be extremely challenging. We need to take into consideration that it is a reasonable requirement for a person conducting business to not only understand the laws of the country in which they operate but also to familiarize themselves with the products they are importing or selling. We therefore recommend a more pragmatic approach to the intent provision that would place more responsibility upon the perpetrator.

l'd also like to take this opportunity to provide comment on how the tools and authorities outlined in Bill C-8 could help our industry address a similar concern regarding an increase in non-compliant products entering Canada. While these products are not counterfeit, they originate from other parts of the world with different labels that do not comply with Canadian regulations. Some of these products also contain ingredients that are not approved for use in Canada or are not clearly identified or disclosed on the package.

Like counterfeit products, non-compliant products are a health and safety concern, especially to Canadians with allergies. The presence of these products also has a negative impact on Canadian manufacturers who take the time to comply with Canadian rules and regulations regarding both product formulations and labelling.

To address this concern, we suggest that companies be allowed to use the request for assistance to flag to border officials not only counterfeit products but also non-compliant products. We'd be interested in discussing in more detail how we can rely on the new tools and authorities in Bill C-8 to prevent these products from entering Canada.

Finally, we would also be interested in learning how Bill C-8 will apply to the selling of counterfeit products on the Internet. We need to be prepared for the different and changing ways that illegal products are entering Canada.

The safety and integrity of our products will remain a priority for our industry, and we look forward to continuing to work with the government and to discussing partnering in areas like training to help equip border officials with the information they require for implementation.

Thank you.

[Jim Keon, President, Canadian Generic Pharmaceutical Association]

Thank you, Mr. Chair and honourable members of the committee. On behalf of the Canadian Generic Pharmaceutical Association, let me say that we appreciate the opportunity for Canada's generic pharmaceutical industry to contribute to your study.

The bill is largely focused on the important objective of combatting counterfeit products. We've already heard some explanation of the importance of that. I will not address my comments to that issue; I would be happy to address questions about it later. I want to focus on one issue, a very specific issue, and that includes the part of Bill C-8 that is related to changes to the Trade-marks Act.

Before I do that, I'll just say a couple of words about our industry. We, the generic pharmaceutical industry, are operating the largest life sciences companies in Ontario, the largest in Quebec, and the largest in Manitoba. We are Canada's primary pharmaceutical manufacturers and exporters. We are among the top R and D spenders across all industrial sectors. Generic pharmaceutical companies employ directly more than 12,000 Canadians in highly skilled research, development, and manufacturing positions.

We are strong supporters of free and open trade, and we export our high-quality “Made in Canada” generics to more than 115 countries. We supply two out of three of all prescription medicines in Canada—two out of three are with generics—quality products at very good prices. That is our role and responsibility in the Canadian health care system.

The issue I wish to address today, as I mentioned at the outset, will focus on the aspects of the bill aimed at modernizing the Trade-marks Act. They are not really intended at all to deal with the issue of counterfeiting; they're just about modernizing the act.

Our primary concern with Bill C-8 is the change to the definition of what is considered “distinctive” under this act.

By way of background, the Canadian Generic Pharmaceutical Association and our member companies have invested tens of millions of dollars in litigation under the provisions of the current Trade-marks Act to develop decades of Canadian case law on this issue. The case law has determined that trademark applications for the size, shape, and colour of a medicine do not meet the requirement for “distinctiveness” under the current Trade-marks Act.

As a result, there are very few trademarks covering the size, shape, or colour of pharmaceutical products that are registered in Canada today. Very few of those trademark applications are ever granted; they are rejected as being not distinctive. Our Canadian pharmacy customers expect generic medicines to appear in similar size, shape, and colour to their brand-name equivalents. In addition to being beneficial for pharmacists, this is also of enormous benefit to patients, as it helps them adhere to their treatment regimens. Their blue water pill is their blue water pill, regardless of whether they are using a brand name or a generic medication.

So similar trade dress for pharmaceuticals is the situation we have today in Canada, and it has been the situation for several decades. The definition of what is “distinctive” under the Trade-marks Act, as it has been interpreted by the Trade-marks Opposition Board and the courts over the span of several decades, is at the heart of it all.

So why is Bill C-8 of concern to our industry?

Bill C-8 changes the definition of what is distinctive under the Trade-marks Act. In our view, it will create a great deal of uncertainty in the law. The International Trademark Association's submission agrees that legal uncertainty is created by the change in definition.

I'll ask for the committee's indulgence. I'm just going to read the two definitions. They can be found on the last page of our brief, for anybody who wants to follow along with our three-page brief.

The well-established definition in the current Trade-marks Act reads as follows:

“distinctive”, in relation to a trade-mark, means a trade-mark that actually distinguishes the wares or services in association with which it is used by its owner from the wares or services of others or is adapted so to distinguish them

The definition in Bill C-8 is different. It sounds different; it is different. This is in Bill C-8:

“distinctive”, in relation to a trade-mark, describes a trade-mark that actually distinguishes, or that is inherently capable of distinguishing, the goods or services of the trade-mark’s owner from those of others

Our concern is with regard to the current case law, which has become clear after decades of litigation around it. It establishes that a mark actually distinguishes something and has acquired that distinctiveness through use, and that a trademark is adapted to distinguish when it is inherently distinctive.

The new language introduces the phrase “is inherently capable of distinguishing”. It will introduce uncertainty. What does “inherently capable of distinguishing” mean? How will this be interpreted by the Canadian Intellectual Property Office, the Trade-marks Opposition Board, and the courts?

It is our understanding from officials...and we understand that Industry Canada officials and the minister made it clear when they were here that in drafting the language in Bill C-8 they had a legal opinion asserting that the new definition is clear under the law and does not create any substantive change in the law.

Industry Canada, the Canadian Intellectual Property Office, and Public Safety Canada have all advised CGPA and this committee that their sole intention is to modernize the language of the act. There was no intention to make a substantive change in the definition of “distinctiveness”. Again, they have clarified that to your committee. Neither was there any intention of altering pharmaceutical trade dress practices in Canada in any way.

This give us little comfort. We have consulted three different law firms who all raised concern that the new definition will create a great deal of uncertainty in the law around pharmaceutical trade dress. It will perhaps come as no surprise to members of this committee that the pharmaceutical industry is the most litigious industry in Canada. At the very least, the change in definition would cost the generic pharmaceutical industry millions of dollars in their efforts to maintain Canadian trade dress for pharmaceuticals and bring increased certainty in the law.

In our view, this is an unintended consequence that is entirely avoidable. On behalf of CGPA, we would urge the members of the committee to table and adopt our proposal for a technical amendment to the definition of “distinctive”. This would not impact the anti-counterfeiting objective of Bill C-8 in any way. It would address the Government of Canada's goal of modernizing the act, as well as the concerns I have outlined to you this afternoon.

I am going to stop there.

I thank the chair and committee for the opportunity to appear and for considering our request.

I look forward to further discussion with you.

[Scott Smith]

I will indeed.

Thank you, Mr. Chairman and members of the committee, for the opportunity to address you today.

I am representing, as you mentioned, the Canadian Intellectual Property Council, which I'll refer to as CIPC. The CIPC is a special council of the Canadian Chamber, representing a broad cross-section of companies dedicated to improving the IPR regime in Canada.

With me is Mr. Lorne Lipkus. He is an intellectual property lawyer, an active member of CIPC, and a recognized expert in the fight against the proliferation of counterfeit goods in the Canadian marketplace.

I'd like to take a few minutes to talk to you about an overview of how important Bill C-8 is to the membership of CIPC and the Canadian Chamber. Lorne is here to provide you with some specific examples of how a few modifications to the bill could save significant time, effort, and money for taxpayers, enforcement agencies of the crown, and brand owners who are the victims of IPR crimes.

The Canadian Chamber, through the CIPC, has been strongly advocating for IPR regime change for the past five years. Many of our members have been doing so for much longer than that. A key component of this advocacy effort is marketplace integrity. Securing ex officio powers for the CBSA, the facilitation of information exchange between enforcement agencies and brand owners, and criminal enforcement provisions for the importation of trademark and copyright infringing materials are high on our list of needed measures. And all of these are hallmarks of Bill C-8.

Counterfeit goods, as you know, cost the Canadian economy billions of dollars. I did have a handout for you, but unfortunately I don't think I had enough English copies, so those will be distributed to you at a later time, but it gives you most of the stats that are of interest to you.

What I'd like to focus on is the fact that we are pleased to see the introduction of Bill C-8 in Parliament. In particular, we are pleased to see the addition of criminal offences in the Trade-marks Act, making it a crime in Canada to import, export, manufacture, or distribute counterfeit goods.

Without second-guessing the urgency of the need to move forward with this bill, there are a few suggestions that we have that might serve to aid the operational side of the legislation. First is the knowledge requirement provisions. We see those as being difficult to proceed with. A preferred approach might be “knowingly” or “should have known”. We look at counterfeiting as being all about money. It's willing buyers and willing sellers, and finding ways to curb the revenue flow for the perpetrators of counterfeit is the most effective deterrent.

A second effective deterrent would be education. We look at education as also being important for enforcement agencies to ensure they are familiar with the marks, the product IDs, etc., of all shipments. So clarity in the request for assistance provisions of Bill C-8 that facilitate the recording of information pertaining to the products of goods of a right-holder in a system that is accessible to CBSA would be very helpful.

One final comment before I pass this on to Lorne is about the exclusion of in-transit shipments. There is a potential threat to public safety if these products are allowed to continue to circulate in the marketplace; they may cause public safety problems.

I'd like to pass this on to Lorne now, who will speak about a simplified procedure that might save time and money. But in thinking about these options, I'd also like to suggest that the committee consider the benefits of operational monitoring, and by that I mean maintaining performance-based statistics leading to a statutory review in three years.

[The Chair, Conservative, David Sweet]

Good afternoon, ladies and gentlemen. Bonjour à toutes et à tous.

Welcome to the 5th meeting of the Standing Committee on Industry, Science and Technology. We're hearing testimony from witnesses regarding Bill C-8.

We have before us, from the Canadian Chamber of Commerce, Scott Smith, who is director, intellectual property and innovation policy, and Lorne Lipkus, partner, Kestenberg Siegal Lipkus LLP, Canadian Intellectual Property Council; from the Canadian Generic Pharmaceutical Association, Jim Keon, president; from Food and Consumer Products Canada, Carla Ventin, vice-president, federal government affairs; and from Eaton Industries (Canada), Vladimir Gagachev, manager, regulatory affairs, electrical sector.

Thank you very much, ladies and gentlemen, for being with us. I understand that the clerk has advised you of the time limits for your testimony.

I need to ask the Canadian Chamber of Commerce if it is just one person who will be giving testimony today or if you are sharing your time.

[Judy Sgro, Liberal, York West, ON]

Why isn't it in Bill C-8? Why did the drafters of the bill not think it was necessary?

[Judy Sgro, Liberal, York West, ON]

We could have kept right on because of fact that the EU and the United States have a way of dealing with it that seems much faster, much more capable, and we're just trying to do catch-up with Bill C-8. I'm glad it's here but we just seem to be doing catch-up more than anything else.

I do appreciate the amendments that you have suggested we put forward. I would hope that in discussions with departmental staff they would view those as a real positive.

But I want to ask you a couple of questions about the “distinctive” issue. Maybe I'd ask Mr. Giddens.

In your brief there were concerns about the word “distinctive” under the act. You had suggested that the word “distinctive” be changed to the phrase “inherently capable of distinguishing” to replace the word “distinctive”. What were your concerns with allowing the word “distinctive” to go forward?