IPIC supports strong intellectual property laws, but we believe these laws should be applied fairly, consistently, and generally to all Canadians. In our view, the proposed bill gives VANOC, the COC, and CPC more rights than may be necessary to deal with the proposed threats of ambush marketing and counterfeiting during the Vancouver Olympic Games.
We have four main points for consideration. The first is that we agree that paragraph 4(1)(a) of the bill is valid; that's the paragraph prohibiting activities that misleadingly suggest an affiliation with the COC, VANOC, or CPC. We agree with this provision and believe that it will give VANOC and the others an opportunity to advertise the point that activities that unfairly suggest an affiliation are illegal.
Beyond that, we believe that other sections in the bill are unnecessary. Specifically, we looked at subclause 3(1), the broad prohibition against the use of certain Olympic terms, and also at the provisions in subclause 4(2) that require the court to consider certain combinations of words in assessing whether the activities are contrary to the act.
First of all, with respect to subclause 3(1), the existing framework of the Trade-marks Act already gives special protection to Olympic associations, and has been widely used by other organizations, including VANOC already—which owns hundreds of official marks. The existing framework of the Trade-marks Act also deals with activities such as infringement and passing-off.
We're concerned that the directions in the legislation may prevent small businesses and large businesses who now support individual athletes or teams from advertising the fact that they do so. In addition, given the strict language of the prohibitions, we believe that past Olympians or past Olympic athletes may be prevented from using that connection in their reasonable activities.
Secondly, we are concerned with the provisions that delete the requirement to show irreparable harm when bringing an application for an interlocutory injunction. Interlocutory injunctions are extraordinary court remedies; a court is being asked to order that certain activities stop before they've actually had a hearing on the issue, and therefore these injunctions are generally awarded very sparingly. This is part of the checks and balances of litigation. Taking out the need to show irreparable harm for the Olympics, VANOC, CPC, and COC puts them on a different footing before the courts from any other party—and there are lots of other businesses, sporting events, and entertainment events that would like to be on that same footing.
What we think would work as an alternative is a provision whereby activities that do reasonably show a not unlawful affiliation with the Olympics would be deemed to be evidence of irreparable harm.
Thirdly, we think it's dangerous to give sponsors the right to sue independently—and under the legislation they do have that ability in certain circumstances. The legislation provides extraordinary remedies and very, very strong rights, and we believe these should be used primarily by the organizations benefiting from those rights, and should be controlled by those organizations.
Presumably, VANOC, the COC, and CPC will control the granting of sponsorships, and they should therefore control the activities of the sponsors. It should be up to them to control the access to the courts and the way in which the bill is interpreted. Letting sponsors have the ability to go into court has the risk that sponsors will exercise that activity and right unfairly, leading to inconsistent results and unpredictability in the application of the law.
Lastly, because of the very special rights they're being granted by this legislation, and the fact that the legislation is justified by the upcoming Vancouver Olympics, we believe that any legislation should be restricted to the Vancouver Olympics and should be sunsetted at the termination of the Olympic Games.
I have further comments with respect to issues of clarity and drafting, which are in our submissions, and I'd be happy to answer your questions afterwards.
Thank you very much.