Good morning.
First of all, thank you very much for re-inviting me to testify before you; I was before you in 2007, but more on that later.
What's great about being the last one to talk is you get to have the benefit of hearing what everybody else had to say. What I find very interesting, especially for you, about today's presentations is that people have come forward and given you the lay of the land in Canada. I'm particularly interested in Mr. Spreekmeester's putting a Canadian face to the counterfeiting problem, so it's no longer an issue of luxury brand owners from foreign countries. I'm very interested in Dr. Barber's statements about the culture in Canada, because I'll be talking about that.
With that said, here's how my testimony ties in to what you've heard so far.
I'm a sole practitioner. I just opened up my own firm. I've been working in the field of anti-counterfeiting for the last 15 years. I'm a past chair of the Intellectual Property Institute of Canada's Anti-Counterfeiting Committee. That's a bit of a mouthful. I've represented the Intellectual Property Institute of Canada in the security and prosperity partnership meetings with Canada, the U.S., and Mexico for two years.
What I'm going to talk to you about is not the Canadian landscape. What I'm going to talk to you about is the problems I see in our legislation, in our policies—problems you can do something to remedy. I can tell you that you're already in agreement with me, because the recommendations I'm going to make to you I already made to you in 2007, and you adopted all of them.
I've been given free reign on my topic today, and I intentionally chose not to go into far more interesting areas—for example, why is Canada not part of the Madrid convention, which is the treaty whereby most industrialized countries file trademarks? What do we do about patent trolls? Dr. Barber has alluded to that point, and I hope you will have questions for him and me on that also. I won't get into a very interesting topic, which is the difference or the conflict between certification marks in section 10 of the Trade-marks Act. That needs fixing up too. I'll stick to what I told you in 2007: anti-counterfeiting and what you can do to resolve it.
Just before I start, I have one word about copyright: enough. I'm not going to talk about copyright; I'm only going to talk about trademarks.
Here's the problem I've encountered in my own practice in dealing with counterfeits. There are three issues I'm raising for your attention. I'm trying to keep it down to a small number. You have those in the summary of my testimony, which I hope has been distributed to you.
Number one, from a criminal enforcement point of view, the RCMP and crown prosecutors only act pursuant to the Copyright Act because there are criminal law dispositions within the Copyright Act. You do not have criminal dispositions in the Trade-marks Act. The criminal dispositions dealing with trademarks are in the Criminal Code, so that creates a jurisdictional problem.
Why is criminal law so important? Because counterfeiters don't play by the books. That's why you have a criminal law system as opposed to a civil law system, where both people participate in a system that recognizes that both are in good faith, or at least theoretically in good faith. When you're dealing with a criminal, you know right off the bat that he's not acting in good faith.
Number two, from a cooperation point of view, in terms of civil authorities and rights holders—this has been alluded to by Mr. Spreekmeester—why do we not have a registration system at the border in Canada as we have in European countries, as we have in the States? It doesn't cost that much, and I'm sure brand owners would willingly participate in it. We haven't even given ourselves the tools to control the trade in counterfeits.
A registration system at the border is very simple. You have a trademark registry in Canada. You have a copyright registry in Canada. You just create a registry system at the border. That way at least you give customs officials one tool to identify people who have rights.
Another problem is that there's no exchange of information between civil authorities and rights owners, so you may have actions that are undertaken on behalf of civil authorities, but rights owners won't be able to get to the information and take their own civil actions. You're depriving yourself of an important ally in the fight against counterfeits here.
Finally, my pet project is to tell you about the Trade-marks Act. We talk a lot about the Copyright Act. We almost never talk about the Trade-marks Act. Did you know that under the Copyright Act you have a system that's called statutory damages. Those are damages for which you don't need to prove an actual loss. It's a nominal amount fixed in the act that you get as a plaintiff when the defendant is found guilty of infringing your copyright. You don't have that equivalent under trademark law.
So in the fight against counterfeiting, depending on whether you have a copyright or whether you have a trademark, you may end up not only with a different result but also with a different evidentiary burden. Somehow, that strikes me as unfair, and this would be easy to solve by putting in statutory damages in the Trade-marks Act.
Those are all my representations. I look forward to your questions.