Industry Committee on June 5th, 2007

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Would just that number, “10”, meet the test of a potential opposition challenge through the Trade-marks Act? If someone were to attempt to trademark “10”, would that pass the test?

[Cynthia Rowden]

Well, “10” is already an official mark. Under the language of the Trade-marks Act, no person shall use in connection with a business, as a trademark or otherwise, any mark that's been protected or resembles a mark that's been protected.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

The organization you represent has approximately 1,700 members, legal practitioners and others involved in the business, so to speak. We've been told by the Vancouver Olympic committee that they'll abide by a larger sort of spirit of this issue. They'll play nice when it comes to potential infringements by small players but act on larger players. They said they would act to ensure that the rights of all sponsors were duly protected.

We're relying on a set of voluntary guidelines to be published after the fact, after the legislation is given royal assent. That's the statement that was given to us by the Vancouver Olympic committee.

Does that cause your organization any concern? Are we creating a subset of non-regulatory regulations, non-statutorily based regulations, in a voluntary set of guidelines, that should be encompassed within the act itself?

[Cynthia Rowden]

In interpreting any particular incident, a court generally looks at the language of the statute. The language of guidelines is not binding on a court. The guidelines may impact the way in which the organization itself deals with the legislation, but it's not binding on a court. Therefore, the concern is that if there are other issues that VANOC or any other organization that is going to be protected by this bill wants to have considered by the court, they should be in the bill and they shouldn't be part of voluntary guidelines.

Another concern we have is that from the way the bill has been drafted, it is clear that other words can be added to the statute by regulatory amendment. For example, other words can be added to the schedules, so there is a potential that far more than we now see could be prohibited by the statute once the regulations are complete, or in the years leading up to 2010.

[The Chair, Conservative, James Rajotte]

This is your last question, Mr. Byrne.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Your brief mentions specifically the import of material into Canada and makes some specific suggestions. One of the concerns or points of view that I expressed at the committee yesterday was that a particular importer, a Canadian-based importer, may source a large volume of T-shirts and import them into Canada. That would be potentially in violation of the trademark and this particular prohibition.

[The Chair, Conservative, James Rajotte]

May we have your question, please, Mr. Byrne?

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Do you have any suggestions as to whether that's a valid point and whether there should be amendments?

[Cynthia Rowden]

I think your point would be addressed by the legislation. Your point would also be addressed by the Trade-marks Act and would also further be addressed by improving Canada's counterfeiting and anti-counterfeiting legislation, which is another wish that IPIC has. I think that within the existing framework there are certainly ways to deal with it.

[The Chair, Conservative, James Rajotte]

Thank you.

Thank you, Mr. Byrne.

We have two more. We'll have Mr. Carrie and then Madame Brunelle.

Go ahead, Mr. Carrie, please.

[Colin Carrie, Conservative, Oshawa, ON]

Thank you very much, Mr. Chair.

You mentioned in your last statement, Madam Rowden, that IPIC would like to see counterfeiting laws tightened up. I'm a little confused about your testimony today, because it seems to fly in the face of previous testimony. We just did a study on counterfeiting, and the preponderance of the evidence we heard was that Canada's laws aren't strong enough and we're not tough enough.

You also mentioned that VANOC would be treated differently in its ability to obtain interlocutory injunctions. I believe that's not the case. We also have other cases in which there's an exemption. VANOC's not the only entity to enjoy specialized access to interlocutory relief; the patented medicines regulations provide automatic 24-month stays to pharmaceutical patents seeking to prevent a suspected infringing generic competitor from entering the market.

I would like you to explain the difference in opinion. It seems that on the one hand IPIC wants us to tighten up on counterfeiting and give stronger laws, but here you're almost saying that we're going too far.

Could you explain the difference to the committee?

[Cynthia Rowden]

Sure. This legislation doesn't deal primarily with counterfeiting; it deals primarily with ambush marketing. That's the stated intent. The term isn't found in the legislation, but that's the impact.

IPIC does strongly support laws that improve Canada's international position, which is seen in the eyes of many as to be insufficient insofar as it deals with protection against counterfeiting, but this act deals with a lot of business activities that clearly have nothing to do with counterfeiting; they have to do with support for Olympic athletes or support for teens. It's with respect to those comments that we have been focusing.

With respect to irreparable harm, the situation for patented medicines is a very special regime that supports a very strong position of Canada to provide medicine at the lowest possible cost. It's fundamental to Canada's socialized medicine. I think the situation we're dealing with here with respect to business interests and the rights of athletes and small businesses has nothing to do with that.

The tests for irreparable harm that we're talking about here are the tests available to any other person who's coming into court asking for the type of relief that is available in this legislation. The type of relief in the patented medicines position is related to a completely different regime.

[Colin Carrie, Conservative, Oshawa, ON]

You also mentioned that if there is a problem, you can get access to the courts quite quickly. Again, the testimony we just heard in our counterfeiting study was that they don't get access to the courts quite quickly; it can be months and months.

With the Olympics being such a short-term event, I think we've had the benefit of seeing other best practices in the world. I can talk about Montreal, the U.K., Australia, New Zealand, and the U.S. All have done these things for ambush marketing. The duration of prohibition against ambush marketing in Montreal, for example, was to the end of 1976; in the U.K., it was to the end of 2012; Australia made it permanent; New Zealand made it permanent; the U.S. made it permanent. Don't you think that's a good idea--to do it at least until the end of the year?

[Cynthia Rowden]

I have three comments. First, the current regime of the Trade-marks Act already gives very special protection to Olympic organizations. They qualify for super trademarks that until now have been very effective in enforcing rights.

Second, on this irreparable harm—I want to make sure I answer your question—access to the courts in a counterfeiting situation is very difficult, because in many situations you don't have a clue who you're dealing with. You don't know who has made those T-shirts. You don't know where they live. You don't know who's behind it. You don't know who's funding them. This is not the kind of situation that is probably going to be dealt with by this bill.

If there are T-shirts that show up--just like I saw “Go Sens Go” T-shirts yesterday--the current laws deal with that. If they don't deal with it sufficiently I don't think this bill is going to improve that. By taking away the necessity to demonstrate irreparable harm, this bill is not going to improve the situation for counterfeiting when you cannot identify the source. I don't think that's really going to have any impact at all. If you want to do that you have to deal with improving the counterfeiting situation.

[The Chair, Conservative, James Rajotte]

Last question.

[Colin Carrie, Conservative, Oshawa, ON]

We had the pleasure yesterday of having a company here that deals with Olympic materials and marketing. She said how important this is to even act as a deterrent. We know that other countries have put similar laws forward and they have worked as deterrents. It's a great first step.

Would you agree with that?

[Cynthia Rowden]

We've already said that the broad provisions in paragraph 4(1)(a) are useful. They act as deterrents, in a way. They will permit VANOC, the Paralympic committee, and the Canadian Olympic Committee to advertise the importance of compliance with this act. Beyond that, a lot of the detail in the legislation is probably going to cause confusion and may actually hurt a lot of the people who, at the end of the day, will end up helping athletes and the games.

[Colin Carrie, Conservative, Oshawa, ON]

Do you have evidence that actually happened in other countries?

[The Chair, Conservative, James Rajotte]

I'm sorry, your time is up.

We'll now move on to Madame Brunelle.

[Paule Brunelle, Bloc, Trois-Rivières, QC]

Good morning, ladies and gentlemen. Thank you for being here.

Ms. Rowden, you said that companies themselves could initiate court proceedings, which brought you to the subject of interlocutory injunctions. You feel that this is going too far. I thought that it was only VANOC that could initiate legal action.

Am I mistaken?

[Cynthia Rowden]

The legislation is drafted to permit sponsors to sue in the event that they first request VANOC, the COC, or CPC to take action and, for whatever reason, they don't. So sponsors will be able to carry litigation in this case.

That sets up an unfair situation where a sponsor may actually be very vigilant in preventing competitors from engaging in honest conduct. It will lead to inconsistent approaches with respect to the legislation. Some sponsors, for example, may be much more vigilant and aggressive than others. Some industry sponsors may be much more aggressive than sponsors in other industries. We think the organizations that benefit from this and are being granted the special rights should be the ones that go into court.

[Paule Brunelle, Bloc, Trois-Rivières, QC]

That contradicts what the members of the organizing committee told me yesterday. You are telling us that the process begins with an organizing committee requesting an interlocutory injunction, but that if the result is not satisfactory the sponsor can also request an injunction. Is that correct?

[Cynthia Rowden]

On the way the bill is drafted, the first line is for the COC, CPC, or an organizing committee, but it is drafted to permit sponsors to go, not if they don't get satisfaction, but if the organizing committee decides not to go or does not respond. There could be very good reasons for an organizing committee to decide not to sue. We think they should ultimately be the ones to make that decision.

[Paule Brunelle, Bloc, Trois-Rivières, QC]

You said that you felt the act was going to be in force for too long. You recommended that any rights granted by this legislation should terminate at the end of the Olympic Games. Why did you make that suggestion?

[Cynthia Rowden]

At the beginning I wanted to preface my comments by saying that I practised as a trademark lawyer for 27 years, and during that time there have been more than a few Olympic Games, and one or two in Canada as well. I think we have some experience already about how the protection of the Olympic marks has been done so far. With that background there is already a body of law, there is case law, there is precedent, that permits parties to know what's going on.

In addition, the official marks that have already been protected are published. They're on the trademarks office database, and they're easy for people to look at. This legislation creates whole new rules, and whenever you have new legislation, you have some unpredictability and uncertainty about how that legislation is going to be impacted. We think that if you want to bring in this legislation to deal with the threat of ambush marketing, let's do it. Let's let it work until 2010, and let's see what happens. At the end of 2010 we may find that it has done nothing to amplify the protection that already exists in the Trade-marks Act. We may find it is totally unsatisfactory. Therefore, we believe that we should stop and take a breath after the Olympics, review the situation, and see at that time what's the best way to protect everybody who's involved.