Industry Committee on Dec. 2nd, 2013

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

The NDP amendments 6, 7, 8, and 9, unless I have different ones in my package....

[Chris Charlton, NDP, Hamilton Mountain, ON]

NDP- 5 should still be coming up.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Right, I'm just saying 6, 7, 8, and 9.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Let's wait until we get there.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[Paul Halucha]

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?

[Michael Ryan]

You've exhausted my contribution.

[Judy Sgro, Liberal, York West, ON]

That's fine. He's explained that. Okay.

[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”.

[Voices]

Oh, oh!

[Christopher Nelligan]

No, thank you.

[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.

[The Chair, Conservative, David Sweet]

Shall clauses 19 and 20 carry?

(Clauses 19 and 20 agreed to)

(On clause 21)

We have G-5.

[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.

[The Chair, Conservative, David Sweet]

Okay.

Shall clause 21 carry?

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

No.

[The Chair, Conservative, David Sweet]

No? Okay, clause 21 is defeated.

(Clause 21 negatived)

[Chris Charlton, NDP, Hamilton Mountain, ON]

I'm sorry, I just need to understand what we're doing here.