Evidence of meeting #5 for Industry, Science and Technology in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was products.
A recording is available from Parliament.
Conservative
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?
President, Canadian Generic Pharmaceutical Association
I think it's that a pharmaceutical application for a pharmaceutical trade dress would now argue that my particular medication, the look of it, the little triangular blue pill, may not yet have become “distinctive”, but it is inherently capable of being distinctive, and therefore I should get a trademark, with all of the rights flowing from that. For the generic pharmaceutical industry, that would be troubling because we have so far been successful in ensuring that those trademarks are not granted to the look of a pill.
Just to be clear, if it's a brand-name company—Pfizer, Merck, or Glaxo—it is clearly distinguished that those are their products. Their name and company logo are on the pill and on the package. Then if it's Apotex or Teva or Pharmascience, that's clearly distinguished. There is no attempt to confuse anyone wanting to know who the manufacturer is. But the reality is that—
Conservative
The Chair Conservative David Sweet
I'm sorry, we're over time.
By the way, in the last seven-plus years I've heard a lot, Mr. Holder, but I can't remember ever hearing on record somebody asking for forgiveness for not being a lawyer.
Madame Sgro, you have seven minutes.
Liberal
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?
President, Canadian Generic Pharmaceutical Association
Correct. Our legal analysis shows that, first of all, there have been dozens and dozens of cases in the trade dress area in pharmaceuticals. Consistently the courts have said that for trademarks relating to the physical appearance of a pharmaceutical dosage form, the tablet, they can get registered only where the product appears that it actually distinguishes the applicant's pharmaceutical from those of others. That has been the case law.
Nothing in the Trade-marks Act says you can't register a pharmaceutical product trade dress. It's simply that the courts have said that pharmaceutical trade dress is not distinctive. It doesn't identify the product as coming from your company. The pharmaceutical trade dress identifies the type of medication, and that is the issue that's been settled.
We're just very concerned that changing the definition...again, not to aid or assist in anti-counterfeiting measures, which are, we've all indicated, and everyone would agree, absolutely important that we do, with increased criminal fines and increased border surveillance. It's simply because there was an opportunity where we were opening up the act to introduce anti-counterfeiting legislation. The trademark office said, “You know what? We haven't updated our act in a long time. Let's modernize it.”
Our concern is that in modernizing this particular definition, they've created some unintended consequences, which, as we were told by the minister and his staff, was not their intention.
Liberal
Judy Sgro Liberal York West, ON
If it wasn't their intention, then some amendments to make sure that's clear shouldn't be a problem for the department.
President, Canadian Generic Pharmaceutical Association
That's what we're hoping, yes, that they would agree that the type of amendment we're proposing is a reasonable one that would not in any way change the intent of the bill.
Liberal
Judy Sgro Liberal York West, ON
Okay.
Mr. Lipkus, we are talking again about this bill going forward in its current form. What kinds of amendments would you suggest, given the fact that we seem to be moving relatively quickly on this bill? What kinds of amendments would you suggest should be done in order to strengthen the bill? Or are you comfortable with the bill going forward in its current form?
Partner, Kestenberg Siegal Lipkus LLP, Canadian Intellectual Property Council, Canadian Chamber of Commerce
I think there are a lot of good things in the bill, so I want to say that. I think everyone can applaud the government for finally dealing with this issue.
Having said that, I think we can do better, and I think we can do better without going back and reinventing the wheel. I think all we have to do is just add a few provisions in the existing sections that talk about a simplified procedure.
The simplified procedure is just that: it's simple. It works; it just adds a few steps. So let's add the few steps and get on with it.
Liberal
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.
Partner, Kestenberg Siegal Lipkus LLP, Canadian Intellectual Property Council, Canadian Chamber of Commerce
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.
Liberal
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?
Partner, Kestenberg Siegal Lipkus LLP, Canadian Intellectual Property Council, Canadian Chamber of Commerce
The short answer is yes.
To give you a slightly longer answer, I've worked with many officers across the country, and we have among the most dedicated and knowledgeable and brightest officers in the world. I've worked with people in other countries as well. When they're given a task, they perform the task.
I'm talking about counterfeit situations right now. They've come up with some amazing cases in Canada. Look at O-Scorpion; what a tremendous success.
If we look for counterfeit, look what happens. We find it.
Liberal
Judy Sgro Liberal York West, ON
To our other two witnesses, you made comments with regard to concerns on health and safety issues. You certainly raised some concerns with us that are of significance. Are you satisfied that Bill C-8 will be able to address those?
Manager, Regulatory Affairs, Electrical Sector, Eaton Industries (Canada) Company
In my business, yes. But Eaton as well as other electrical manufacturers are members of the Canadian Intellectual Property Council.
I'm an engineer for the legal matters. I differ from Mr. Lipkus. However, we are generally satisfied with the intent and the way the bill is going forward.
Vice-President, Federal Government Affairs, Food and Consumer Products of Canada
We're satisfied as well.
Many of our products line the grocery shelves and drugstore shelves. These are products that you put in your mouth and that touch your skin, so the stakes are very high. These are a concern for us, and we think Bill C-8 will address that on the counterfeit side.
As I mentioned in my remarks, there are also other products, non-compliant products. These are products that are also a health and safety risk. They are not counterfeit, but they do pose a health and safety risk to Canadians, both inside and outside the product. For example, on the inside these products may not comply with Canada's very strict rules and regulations. They may have ingredients that have not been approved in Canada. This is a really big concern.
Conservative
The Chair Conservative David Sweet
Thanks, Ms. Ventin.
Sorry, we're way over time.
That's the completion of our seven-minute round. Now we're going to our second round of five minutes.
Ms. Gallant.
Conservative
Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON
Thank you, Mr. Chairman.
A number of you have indicated that it should not be the trademark holder, essentially the victim of the counterfeiting crime or the transport of them, who should be financially responsible. What are your thoughts on holding the transporter accountable, the entity on whose ship or truck it came through?
We'll start at one end and go through.
Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
I would agree that the brand owners are the victims in this situation. They have an investment in their brand and they do want to protect that, so they have a willingness to spend some money to be part of this process.
In terms of those who are transporting, generally they have no knowledge of what's in those containers. There is no process for a transporter to be able to recognize what's in a container's shipment, as far as I'm aware.
Conservative
Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON
Is there no request for the ship's captain to carry a manifest and hand that in to Canada Border Services Agency?
Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
He would have a manifest, but it would tell him what the product is; he wouldn't be able to distinguish what's counterfeit and what's not counterfeit from that manifest.
Partner, Kestenberg Siegal Lipkus LLP, Canadian Intellectual Property Council, Canadian Chamber of Commerce
If I could help out on that, it doesn't really tell him what's in there; it tells him what the person who is exporting it or importing it says is in there. It's up to customs to look to see if that makes sense or not.
Very often, they catch counterfeiters because they make mistakes in their manifests. It's actually moving from one victim to another victim.
Where it might be nice to hold some people responsible is if you have someone who is responsible for getting proper information on the address and name and contact information for the importer.
Conservative
President, Canadian Generic Pharmaceutical Association
I would say that in general, in the prescription pharmaceutical industry, you're dealing with entities that are highly regulated. All manufacturers, wholesalers, distributors, and retail pharmacies are licensed. They need establishment licences, and they are inspected by Health Canada. For the physical products coming into and being sold through legitimate trade in Canada, the products are generally safe.
I think where we've had more problem with pharmaceuticals has been with online sales. We know that the RCMP and others have done a very good job, as Mr. Lipkus and others have said, in attacking that problem and addressing it.
I'm not really answering your question on whether shippers or distributors should be liable, but I think in general they deal with parties who are registered and need establishment licences. If you're dealing with anyone other than that, you probably would and should be liable.