Industry Committee on May 12th, 2014

[Mark Eisen]

Just to make sure I understand, again, you're saying that, if somebody registers a trademark without having used it and it turns out there is a business that has used that trademark, there are measures in the Trade-marks Act itself, including having to resort to the Federal Court, assuming they missed the opposition period, which would occur before the registration is granted. Anyone who has prior use of that trademark is the first adopter and has the right to prevent the use and registration by a third party.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

If the registration were to be cancelled, there might potentially be long and costly litigation to determine use or at least to protect the trademark.

I am talking about legislative changes that are being proposed and that may come in the future.

[Janet Fuhrer]

Yes, that certainly is a real risk.

[The Chair, Conservative, David Sweet]

Thank you, Mr. Côté.

Now we'll go on to Mr. Van Kesteren for four and a half minutes.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Thank you all for coming here this afternoon and discussing this important part of the budget implementation.

Ms. Fuhrer, I'm curious that it's not discussed in your circles, the point that Mr. Warawa was making in regard to the United States and why they are regulated and have to go through the declaration. I'm certainly not going to lecture you. You have much more knowledge in international law than I do, but it is a fact that the way their constitution is set up, between the states.... You know, we talk about problems we have with trade amongst ours, and well, apparently they have this little issue as well. True to what Mr. Warawa was saying, they find this cumbersome as well.

Now I understand your concerns, and I think as a lawyer I perfectly understand that you want to protect your client, but do you see the need for changes that are being made as an overall playing-out into the new international trade? The horse has left the barn; this is the way the world is going. Can you maybe have some sympathy with the government for moving along with international regulations?

[Janet Fuhrer]

I have some understanding of why the government is doing what it's doing. I've practised long enough, been involved with liaison committees with the Canadian Intellectual Property Office, etc., attended meetings where representatives of government have been present at the World Intellectual Property Organization, for example, so I do have some understanding of where the government is coming from on this.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Now, maybe again I'm talking to the wrong forum because your role is strictly to protect your client, but are you finding a lot of your clients contact you saying, “Gee, I really think the government is making a mistake. Please, on our behalf, would you advocate for us to change this provision?”

[Janet Fuhrer]

No, and I say no because, for most of our clients—and I am in private practice—where they look to next after Canada to protect their marks is the United States.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Yes and I said that as a preamble, too. That's not your role; that would probably be another role.

With the Intellectual Property Institute of Canada, are you hearing any murmur amongst the corporations and the businesses that this is a mistake, this provision that we're introducing into the bill?

[Mark Eisen]

I have not. I wouldn't necessarily attribute anything to that. It's happened very quickly and I'm not sure that news of this has filtered out, and if it has, whether there's a complete understanding on the businesses' side of what it actually means. But I have not heard murmurs or rumours of that nature.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Mr. Chair, that's the only question I wanted to ask.

[The Chair, Conservative, David Sweet]

All right. Thank you very much, Mr. Van Kesteren.

I'm sorry, I can't see—

[Annick Papillon, NDP, Québec, QC]

Ms. Butterfly.

[Voices]

Oh, oh!

[The Chair, Conservative, David Sweet]

Madame Papillon, I'm sorry, it's the first time you've been in this committee. I have a hard time remembering all of my caucus's names, so....

Please, you have four and a half minutes.

[Annick Papillon, NDP, Québec, QC]

Thank you, Mr. Chairman.

Mr. Gérin, I was listening to your remarks. Intellectual property is certainly something of concern to my riding in Quebec, where certain industries have a strong interest in this.

Do you have any information about cultural industries? Quebec City is first and foremost a major cultural city with a great deal of artistic activity and many cultural performances. So people pay very close attention to intellectual property and all the bills and anything else proposed by the government because those provisions have a concrete impact. Could you give me any information about the sector that might be affected?

There is also the IT sector. The video game industry is experiencing an unprecedented boom in Quebec City, and, as was confirmed to me recently, it has a considerable market share.

Would you be able to tell us how the government's current proposal might affect those industries in particular?

[Michel Gérin]

The current proposal might affect those industries as well as others. When you talk about the cultural sector, copyright issues might have more of a direct impact,which is not the subject of Bill C-31. As for video products and so on, they would be affected more by patent issues.

However, to the extent that all of those businesses, whether they are working in the video field or cultural activities, have trademarks or wish to apply for them, they will be affected in the same way as other businesses.

[Annick Papillon, NDP, Québec, QC]

I would like to take this opportunity to ask you something about public consultations.

The current government is somewhat allergic to public consultations, even though they can be so beneficial. The more people who are consulted from these fields, the more voices we will hear from. It may be that not all of the ideas expressed are good ones, and maybe some of them will turn out to be far-fetched, but certain ideas that come from experts involved in these areas could be helpful to the process.

Could public consultations have been beneficial in this case in improving the current proposal? If so, could you please tell us what you think could have been most helpful for us, as legislators?

[Michel Gérin]

I would like to be clear about the issue of consultations, since you have probably received this information. In 2010, the government held consultations on the issue of treaties. I am not sure how broad those consultations were. As other witnesses have said, the treaties contained both positive and negative aspects.

With respect to the issue of use that is currently the focus, the recommendation to the government was that there be more discussion. We did not have enough information at the time to be able to take a position. We felt that more discussion was needed, but that did not happen. In November, there was a very brief consultation. It was very limited and dealt only with certain aspects. It did not deal with the overall set of provisions we are seeing today.

So yes, I think that more consultation would have been helpful. As Mr. Eisen mentioned, businesses could have had the opportunity to express their views about the changes being proposed now.

[Annick Papillon, NDP, Québec, QC]

Should we not take that comment seriously today? I will let you continue on that point.

Should we not acknowledge that, and no longer do public consultations in the way that I have too often seen them done? The government tends to choose someone and ask about certain specific points. But I do not have the impression that there is any genuine exchange of ideas. There is no real dialogue, as should be the case in a consultation process. Moreover, the consultation needs to be public.

Sometimes it seems to me that the government has only consulted two or three people and has only told them what the government is intending to do, without necessarily taking into account aspects that might create problems.

I will let Ms. Fuhrer speak to that.

[The Chair, Conservative, David Sweet]

That will have to stand as a statement, Madame Papillon. We're well over time.

[Annick Papillon, NDP, Québec, QC]

Sure, that's okay.

[The Chair, Conservative, David Sweet]

Madam Gallant, now, for four and a half minutes.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Thank you.

First of all, I'd like to ask the witnesses whether or not they are opposed to the Canadian government joining the treaties. It's supposed to ease the process for foreign applicants to register their trademarks within Canada, giving consumers more choice. Is everyone consistently in agreement with that?

[Mark Eisen]

Whatever the benefit may be, IPIC is not opposed to adopting the treaties per se.