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.
5:15 p.m.
Manager, Regulatory Affairs, Electrical Sector, Eaton Industries (Canada) Company
The good news for this building, Public Works Canada, is that the investigation found only one counterfeit. It was last year, and I think it's been removed.
As to Mr. Lake's question about tools, records of trademarks at the border, the World Customs Organization has a tool, but its name escapes my recollection right now. Sorry?
5:15 p.m.
Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
It's Interface Public-Members.
5:15 p.m.
Manager, Regulatory Affairs, Electrical Sector, Eaton Industries (Canada) Company
Yes. It's used as a record of trademarks where the interface between the brand owner and customs officer comes into play. It's software.
5:15 p.m.
Conservative
The Chair Conservative David Sweet
Thank you very much, Mr. Gagachev.
Now, the first one to get my attention with a burning question is Mr. Jean.
5:15 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Thank you for that, Mr. Keon. I have more questions for you, however.
The first is, I could not find any country that has adopted the terminology you're suggesting to take out of the definition: “or that is inherently capable of distinguishing”. I tried to find it. I wasn't playing with my emails; I was actually trying to find more information on this. There doesn't seem to be any other country in the Commonwealth or otherwise that has that.
In fact, I looked at the United States, and I don't really put my head around the whole circle. It seems there's case law: Abercrombie & Fitch v. Hunting World, a 1976 case that uses the spectrum of distinctiveness.
The United States seems to have quite a bit of law relating to different types of trademarks: fanciful marks, arbitrary marks, suggestive marks, descriptive marks, and generic terms. When I was reading that, it became apparent that this was one of the issues. Courts could find that some trademarks would be considered generic.
Is that an issue? Can you comment on what I've just asked in relation to the United States and the case law they use? The United States has ten times the level of infringement that we have.
5:15 p.m.
President, Canadian Generic Pharmaceutical Association
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.
5:15 p.m.
Conservative
5:15 p.m.
Voices
Oh, oh!
November 20th, 2013 / 5:15 p.m.
Liberal
Judy Sgro Liberal York West, ON
You're all very sweet. Thank you all so very much.
Since we seem to have this increasing speed to deal with this bill.... We have a memo that says we may have to put in our amendments as early as the coming Wednesday.
To any of you at the table, do you.... I'm glad we're dealing with Bill C-8, not to go on record as going the wrong way, but I see health and safety concerns being raised. I also see opportunities to talk more about a simplified procedure. Otherwise, it's the rights holder that's going to get hit with added costs and problems, whereas if we were to put in a simplified procedure or administrative regime—call it whatever you like—it seems to me that we would be saving money.
The government talks about spending tax money and so on. I think we should make sure that whatever we do is not adding costs that we don't have to for anybody other than the people who are doing the criminal activity, which I'd like to see us go stronger on from that perspective.
I guess that's the first question: do you think we should be spending more time on this bill to put more teeth into the bill?
Second, because I may not get the floor again, Mr. Keon, you mentioned legal opinions in regard to the distinctiveness issue that you're concerned about. Would you be prepared to give those to the committee to make sure that we all have adequate information?
5:20 p.m.
President, Canadian Generic Pharmaceutical Association
Yes. We'd be happy to share the legal opinions I'm referring to.
5:20 p.m.
Partner, Kestenberg Siegal Lipkus LLP, Canadian Intellectual Property Council, Canadian Chamber of Commerce
The optimist in me says, “Why can't we just quickly make these amendments and get moving and get this passed?”
5:20 p.m.
Conservative
The Chair Conservative David Sweet
Thank you very much for that, Mr. Lipkus. We're trying to do just that.
Madam Charlton.
5:20 p.m.
NDP
Chris Charlton NDP Hamilton Mountain, ON
Thank you very much, Chair. I'm delighted to be able to use Ms. Sgro's remaining eight minutes. Thank you for that.
5:20 p.m.
Voices
Oh, oh!
5:20 p.m.
NDP
Chris Charlton NDP Hamilton Mountain, ON
I want to follow up with Mr. Smith. I think where my colleague Mr. Thibeault was going with respect to the tracking is that we absolutely need to have some evidence with respect to the size of the problem before we can have an intelligent conversation about the enforcement that's necessary. We know at a rudimentary level that more resources are needed because we're asking the border guards to take on additional responsibilities, but really, we need to figure out what the magnitude is that we're talking about, and we all believe in evidence-based decision-making—at least on this side of the table.
You were talking about the need for tracking. Obviously, if we're going to do that, that information needs to become available. Would you be comfortable with requiring regular reports to Parliament so that we have transparency and real accountability? What were you envisioning with respect to that kind of tracking?
5:20 p.m.
Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
I think that would be up to the agencies that are tasked with developing that information. They have their own protocols on how they disclose information. There may be some privacy issues there such that they aren't able to disclose everything, but I think it's important that the information be available to decision-makers if there's going to be such a thing as a legislative review in a few years.
5:20 p.m.
Conservative
Ed Holder Conservative London West, ON
Thank you, Chair.
My question actually flows from Mr. Merrifield's questioning about the United States and the EU and what they do.
Mr. Lipkus, help us to understand. In those jurisdictions, who's responsible for the storage and destruction of counterfeit goods?
5:20 p.m.
Partner, Kestenberg Siegal Lipkus LLP, Canadian Intellectual Property Council, Canadian Chamber of Commerce
As I understand it, it's similar to what it is in Canada, where, if there's going to be an action, it's at the cost of the rights holder.