Yes, I think trademark law is interpreted differently in different countries. We're not aware of any country that has adopted a definition identical to what the Canadian government is proposing.
As well, the International Trademark Association, in their brief, also expressed concern about the new definition of distinctiveness. They also highlighted the term “inherently capable of distinguishing”. They said that we should add a definition of that new term “inherently capable of distinguishing”, so it's an issue that they also flagged.
We don't think that you want to introduce a new definition and then add a new definition of parts of that new definition. The courts in Canada have never expressed a problem in determining what the act meant. They look at the facts of the case. They've been able to apply that to the definition. I think the best thing would be to, as much as possible, leave that definition as it is.