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.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
The NDP amendments 6, 7, 8, and 9, unless I have different ones in my package....
Conservative
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Okay. I just thought I'd bring it up at this time as it might make sense. That's okay.
Conservative
The Chair Conservative David Sweet
I'm sorry, Mr. Lake, we have different ways of tracking.
We are on clause 5.
(Clause 5 as amended agreed to)
(Clause 6 agreed to)
(On clause 7)
We have amendment NDP-5.
NDP
Chris Charlton NDP Hamilton Mountain, ON
Thank you, Chair.
I think this is an issue where we'll probably find some agreement. The generic pharmaceutical industry in particular was very concerned about the definition of “distinctive” under the proposed legislation. In particular, the concern was related to the issue of consumer confusion, particularly when it comes to medications.
Our amendment proposes to resolve those difficulties because I think the new definition had a number of unintended consequences. Our proposition is to return to that level of certainty that we'd achieved through case law, to return to the former definition of “distinctive”. I believe the government's amendment is almost identical to that, so I hope that we'll actually find some agreement on our amendment.
Conservative
The Chair Conservative David Sweet
I guess I should tell the members here that there is a line conflict. If NDP-5 is adopted, then we cannot proceed with the other two amendments.
NDP
Chris Charlton NDP Hamilton Mountain, ON
I think all of the amendments are roughly the same. Ours is the same as the government's, I think.
Conservative
The Chair Conservative David Sweet
There's a conflict in a line, so if this were adopted then we couldn't proceed with the other two amendments.
Mr. Lake and then Ms. Sgro.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Maybe I'll just get the officials to comment on the difference between the three proposed amendments.
Director General, Marketplace Framework Policy Branch, Department of Industry
I'll refer to the three amendments as NDP-5, G-4, and LIB-2.
On NDP-5, I recall that when the committee heard from the generics industry, they made the argument that there was a risk when modernizing the legislation that the existing jurisprudence around trademarks in the pharmaceutical sector could be disrupted, and there could be an extension of trademarks to companies that may not have qualified before. The argument is to retain, as closely as possible, the existing definition in the act. In order to not disrupt jurisprudence, it makes sense to retain the current definition as closely as possible.
There is a very small difference between NDP-5 and G-4. NDP-5 adds the word “as”, so it reads “or is adapted so as to distinguish them”. G-4 does not add the word “as”.
We have not obtained legal advice to determine whether the “as” kills this definition or results in a significant difference. I would go back to the original statement that, to the extent we want to maintain existing jurisprudence, there's a strong argument to retain the existing definition, which G-4 does.
LIB-2 does something slightly different from that.
Mike, do you want to expand on this one?
I'll read it out, and then we'll ask Mike to provide more detail on it.
LIB-2 says, “the goods or services in association with which it is used by the trademark's owner from those of others”. So it eliminates the idea of a trademark that is inherently distinctive. Therefore, for example, a word like “Xerox”, which of itself is inherently distinctive, could not be trademarked unless it were established through use. The Liberal amendment has the effect of removing a large component of what is currently admissible for trademarking.
Mike, do you want to explain?
Senior Analyst, Copyright and Trade-mark Policy Directorate, Department of Industry
You've exhausted my contribution.
Conservative
The Chair Conservative David Sweet
Mr. Nelligan, since you're not here for legal advice, I take it you wouldn't want to comment on the “as”.
Conservative
The Chair Conservative David Sweet
That's what I thought.
Any other comments or questions?
Does NDP-5 carry?
(Amendment negatived [See Minutes of Proceedings])
Shall G-4 carry?
(Amendment agreed to [See Minutes of Proceedings])
We can't proceed with LIB-2. Okay, that's fine.
Shall clause 7 carry as amended, then?
(Clause 7 as amended agreed to on division)
Since we have no amendments for clauses 8 to 18, shall clauses 8 to 18 carry?
(Clauses 8 to 18 inclusive agreed to)
On clause 19, then.
Mike MacPherson Procedural Clerk
Actually, no, we're up to clause 20.
You can go to clauses 19 and 20.
Conservative
The Chair Conservative David Sweet
Shall clauses 19 and 20 carry?
(Clauses 19 and 20 agreed to)
(On clause 21)
We have G-5.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Since G-5 would just delete the clause, we'll just vote against the clause and it'll have the same effect.
Conservative
NDP
Chris Charlton NDP Hamilton Mountain, ON
I'm sorry, I just need to understand what we're doing here.
