Evidence of meeting #7 for Industry, Science and Technology in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site.) The winning word was amendments.
A recording is available from Parliament.
5 p.m.
Conservative
5 p.m.
NDP
Anne Minh-Thu Quach NDP Beauharnois—Salaberry, QC
Yes. Here it is:
That Bill C-8, in Clause 28, be amended by replacing line 25 on page 23 to line 19 on page 24 with "may destroy, after a digital copy has been created”.
5 p.m.
Conservative
The Chair Conservative David Sweet
Okay?
(Amendment negatived)
(Clause 28 agreed to)
(Clauses 29 to 37 inclusive agreed to)
(On clause 38)
We have LIB-4.
5 p.m.
Liberal
Judy Sgro Liberal York West, ON
Thank you, Mr. Chair.
This amendment alters the provisions allowing the registrar to correct mistakes on the register, removing ministerial discretion and correcting the mistakes and eliminating the time period for such corrections to be made.
Perhaps staff could respond to that amendment and what their thoughts are there.
5 p.m.
Director General, Marketplace Framework Policy Branch, Department of Industry
Currently, only the Federal Court has the jurisdiction to correct any errors on the trademark register. The goal of Bill C-8 is to give the registrar the ability to correct errors without going to the Federal Court. Right now the circumstances are such that even if an error is determined right after a filing, in order to have it corrected once it's on the register, the commissioner of trademarks or the trademark owner has to go to Federal Court to have that correction made. So what the amendment does is provide for a six-month period during which, if an error is determined by the trademark owner, then the commissioner of trademarks has the ability to make that correction without going to Federal Court.
The amendment changes the flexibility the commissioner has in response to errors identified by the rights holder to a liability, so he or she would effectively be in a position of having, first off, to proactively correct all errors, and then, secondly, be responsible and liable in situations where they did not find the error.
From the perspective of analyzing this section, there's a legal community of trademark agents who have the strongest incentives to make sure that their trademarks are accurate. Our view is that they are best-positioned and most responsible to bring those errors forward to the commissioner, who can then correct them. To create a liability on behalf of the commissioner would substantively raise the bar.
5:05 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
If I may, Mr. Chair, my understanding is that it could be cured for six months. If there's a failure on the title, or in this case, it's not the title, but there's a six-month window, that gives the opportunity to lawyers, who of course are patent officers who register these, to send them off. When they bring them back, if they see that it's not a perfect registration, they have a six-month window to be able to perfect it, with a letter. If it's not within that six-month window, and they find out through negligence or some other challenge to their right in three or four years, then they have to go to court for a settlement of that.
5:05 p.m.
Director General, Marketplace Framework Policy Branch, Department of Industry
Yes, that's an accurate description.
Part of the reason for the determination of a time-delineated period is that you want to have stability and certainty in the marketplace. If there were no certainty around a trademark—that it could be amended without a court process at any point ongoing—it would undermine that objection.
5:05 p.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
This actually reflects perfectly what our society is built on, which is the [Inaudible--Editor] system of land and the perfection of registration of land titles.
Would that be fair to say?
5:05 p.m.
Senior Analyst, Copyright and Trade-mark Policy Directorate, Department of Industry
Sure.
5:05 p.m.
Director General, Marketplace Framework Policy Branch, Department of Industry
Michael agrees.
5:05 p.m.
Conservative
The Chair Conservative David Sweet
Shall LIB-4 carry?
(Amendment negatived [See Minutes of Proceedings])
(Clauses 38 to 41 inclusive agreed to)
(On clause 42)
We have G-7.
5:05 p.m.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
I'll get the officials to comment on this one. If you look at the amendment there are a bunch of different changes in there, but I'll get the officials to comment on the effect of the changes.
5:05 p.m.
Director General, Marketplace Framework Policy Branch, Department of Industry
I'll start off and provide an overview of what the amendment does. Effectively, the amendment removes the requirement for the crown to prove that the accused knew that the trademark was registered and his or her actions were contrary to sections 19 and 20 of the Trade-marks Act.
This issue was raised before the committee by IPIC on November 6 and by INTA on November 18.
Obviously, in order to be found guilty of having committed a counterfeit offence, you've got to show that there's a mens rea, that it was done knowingly. The two components that are retained are the knowledge that the goods were infringing—it was a counterfeit good—and second, that there was no consent of the rights holders. The third component the amendment proposes to remove is knowledge that the trademark is registered and that it was contrary to sections 19 and 20 of the Trade-marks Act.
INTA and IPIC noted that this puts quite a high burden on the rights holders for them to be able to use the act effectively. We are essentially in agreement with them and are removing what we view as probably the most onerous part of the mens rea, a section that, in reflection, probably put a burden that was not necessary in terms of what the objective of this provision is.
5:05 p.m.
NDP
Glenn Thibeault NDP Sudbury, ON
Thanks, Mr. Chair.
To Mr. Lake and/or the analysts, does this proposed new subsection, 51.01(5) cancel out the knowledge requirement that is repeated five times throughout this amendment?
Does this create a risk of being prosecuted for small businesses who unknowingly or unintentionally import something counterfeit?
5:05 p.m.
Senior Analyst, Copyright and Trade-mark Policy Directorate, Department of Industry
In essence what we're removing is the knowledge of violating the particulars with respect to 51.01(1)(c), the idea that it violates section 19 or 20. You now don't need to prove the accused knew they had violated those particular civil infringement provisions. But the crown needs to prove that they are infringing.
However, with respect to the knowledge requirement of those prosecuted, they do need to know that they have copied a mark and that they did not have the permission of the trademark owner. So in those contexts, they are doing these activities knowing they are not allowed and knowing they don't have the authorization from the right holder to copy these marks.
5:05 p.m.
A voice
So there still is a knowledge component.
December 2nd, 2013 / 5:10 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Thank you, Mr. Chair.
Is it that they actually knew or they ought to have known? Isn't it a little bit looser than their actually having known?
5:10 p.m.
Senior Analyst, Copyright and Trade-mark Policy Directorate, Department of Industry
Just to clarify this, the requirement is that the accused knew they were copying and that they didn't have the authorization of the right holder.
5:10 p.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
I may be on the wrong section then. I was looking at proposed paragraph 19.1(3)(b). Am I just in the wrong section for ought to have known?
Thank you, Mr. Chair, for your latitude.