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.

On the agenda

MPs speaking

Also speaking

Scott Smith  Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
Lorne Lipkus  Partner, Kestenberg Siegal Lipkus LLP, Canadian Intellectual Property Council, Canadian Chamber of Commerce
Jim Keon  President, Canadian Generic Pharmaceutical Association
Carla Ventin  Vice-President, Federal Government Affairs, Food and Consumer Products of Canada
Vladimir V. Gagachev  Manager, Regulatory Affairs, Electrical Sector, Eaton Industries (Canada) Company

4:20 p.m.

NDP

Chris Charlton NDP Hamilton Mountain, ON

Thank you.

Do I have time left?

4:20 p.m.

Conservative

The Chair Conservative David Sweet

You have 15 seconds.

4:20 p.m.

NDP

Chris Charlton NDP Hamilton Mountain, ON

Just very quickly, then, I want to move to the counterfeit side.

Mr. Smith, if I understood you correctly, you said that you had some statistics you had hoped to distribute, but they weren't in both official languages. I wonder if you could orally tell us what those statistics are, because I think they're really important to the debate we're having.

4:20 p.m.

Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce

Scott Smith

Thank you.

The report I was circulating is quite large. If you're asking specifically about the generic drugs or brand-name drugs and in-transit shipments, the concern we have is about what happens with things like the customs bonded warehouse program, where shipments of drugs can actually be broken down, repackaged, relabelled, and re-sent without actually incurring any tax implication. Are those still considered in-transit shipments? Could those actually end up back in the hands of Canadians through small shipments coming back into the country? I think that's the concern we have.

4:20 p.m.

Conservative

The Chair Conservative David Sweet

Thank you, Mr. Smith. We're over time there.

Ms. Charlton, we do have those statistics. We just don't have enough copies. They will be here momentarily.

Now, for seven minutes, Mr. Holder.

4:20 p.m.

Conservative

Ed Holder Conservative London West, ON

Thank you, Mr. Chair.

Thank you to all of our guests for your representations today. I'll probably work my way down and see how far we go with that, if we might, please.

Mr. Smith, I might start with you. Just based on some of those statistics, what I'm really trying to get a handle on is how huge the problem of counterfeiting is to Canada. You may have a lot of stats in that package you have. Has the Canadian Chamber of Commerce been able to guesstimate how big the problem truly is?

4:20 p.m.

Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce

Scott Smith

The challenge was in trying to figure out how much volume there is or what the value of those products coming through is. In putting a number on that, you get statistics on the seizures, but you don't get statistics on what's not being caught. What we know, for instance, is that in 2011, in Project O-Scorpion, they seized product worth $78 million.

We also know that the RCMP investigates roughly only 25% of the cases that are put before them. There was probably a bump in 2011 where it was probably more than 25%, but that was very focused on the Toronto market.

Do we have a sense of what it is in Canada? No, we don't. The only thing we do know is that the OECD has put a number on it at somewhere near $250 billion worldwide.

4:20 p.m.

Conservative

Ed Holder Conservative London West, ON

You made a comment in your testimony about some of the challenges associated with in-transit shipments and Internet issues, but actually, just because of time, I'd like to talk to Mr. Lipkus.

Mr. Lipkus, you are the second Mr. Lipkus I've ever met in my life, the first one a couple of days ago. Any relation?

4:20 p.m.

Partner, Kestenberg Siegal Lipkus LLP, Canadian Intellectual Property Council, Canadian Chamber of Commerce

Lorne Lipkus

Yes. Come to our supper table. There are lots of Mr. Lipkuses. I have three sons.

4:20 p.m.

Voices

Oh, oh!

4:20 p.m.

Partner, Kestenberg Siegal Lipkus LLP, Canadian Intellectual Property Council, Canadian Chamber of Commerce

Lorne Lipkus

He's my middle son.

4:20 p.m.

Conservative

Ed Holder Conservative London West, ON

I couldn't imagine who gets a word in. I'm not sure, but—

4:20 p.m.

Partner, Kestenberg Siegal Lipkus LLP, Canadian Intellectual Property Council, Canadian Chamber of Commerce

Lorne Lipkus

And you haven't heard from the other two.

4:20 p.m.

Conservative

Ed Holder Conservative London West, ON

I think to be a fly on the wall would be exhausting, actually.

4:20 p.m.

Voices

Oh, oh!

4:20 p.m.

Conservative

Ed Holder Conservative London West, ON

With deep respect I say that, of course, Chair. He was eloquent and, I will say, a chip off the young block.

You made a comment about common law right versus trademark right. Forgive me, but not being a lawyer, what's the difference? Can you explain that to me, please?

4:20 p.m.

Partner, Kestenberg Siegal Lipkus LLP, Canadian Intellectual Property Council, Canadian Chamber of Commerce

Lorne Lipkus

If you register under the Trade-marks Act, you have a registered trademark in Canada. You have certain rights under our legislation.

If you have a trademark, you have a right under the common law, which would be case law that's evolved over the years. You still have certain rights, but you don't have the statutory rights that are contained in the Trade-marks Act. You don't have the exclusive right to a particular trademark in Canada, which you do if you've registered.

Very often in Canada it takes years to get your trademark registered, and what happens is that many of the very famous trademarks we're dealing with now encountered a counterfeiting problem before they could even get their trademark registered. But they would still have protection. They could still prevent someone else from using it, because that would be like passing off the other product for the unregistered trademark.

4:20 p.m.

Conservative

Ed Holder Conservative London West, ON

All right.

4:20 p.m.

Partner, Kestenberg Siegal Lipkus LLP, Canadian Intellectual Property Council, Canadian Chamber of Commerce

Lorne Lipkus

It would be confusing to the public.

4:20 p.m.

Conservative

Ed Holder Conservative London West, ON

Well, I'm getting it a bit more, so I thank you for that. I look forward to reading more of your formal representation on that, which is a nice segue to Mr. Keon.

Mr. Keon, it looks like you're talking specifically to one issue as it relates to the Trade-marks Act. It didn't sound to me like you didn't want to modernize the Trade-marks Act, you just wanted to make sure that it was not counter to the tradition you've had with regard to generic drugs.

Here's my question. I look at page 3 of your presentation, and I'm a little confused. Mine's just a philosophy degree, so I have to read this a little more carefully. As I see this, there are two sets here on page 3, at the very bottom. There's the CGPA proposal compared to the definition of Bill C-8. There is the definition of Bill C-8 compared to your proposed revised definition. Then below that is your proposal compared to the definition in the current act, where you have the definition of the current act versus the proposed revised definition.

From your perspective, where are you going? Where would you like to see this? I think it really does centre on the point you made about “distinctive” in relation to a trademark, and that which is inherently capable of distinguishing and so on. That is your definition concern. I see a couple of proposals here. From the standpoint of your association, where are you looking to take this?

4:25 p.m.

President, Canadian Generic Pharmaceutical Association

Jim Keon

Just before I answer that, I can also say that we use one of Mr. Lipkus' other sons as a lawyer who advises our industry sometimes. They are very good lawyers.

4:25 p.m.

Conservative

Ed Holder Conservative London West, ON

I hope your other son has enough work.

4:25 p.m.

Partner, Kestenberg Siegal Lipkus LLP, Canadian Intellectual Property Council, Canadian Chamber of Commerce

Lorne Lipkus

He's a very good lawyer too.

4:25 p.m.

Conservative

Ed Holder Conservative London West, ON

Sorry, please go ahead.

November 20th, 2013 / 4:25 p.m.

President, Canadian Generic Pharmaceutical Association

Jim Keon

On the definition of “distinctive”, the phrase that we are suggesting be taken out of Bill C-8 is the phrase “inherently capable of distinguishing”. Why we think that introduces uncertainty is simply that under the current law it's been made clear that you have to demonstrate that a trademark actually is distinctive. In the pharmaceutical industry, where wording matters, and issues of technical definitions matter and are litigated extensively, putting in a new concept there, we believe, will open up more litigation, more uncertainty. That particular phrase is what our law firms have flagged for us.