Canada Takes Counterfeiting Head-On

For years, the international community has criticized Canada’s regulatory response to counterfeit products. In response, two parliamentary committees introduced the Combating Counterfeit Products Act (“CCPA”) back in 2007. It has taken six years for the act to make it to parliament’s floor. This month however, Parliament’s third reading of the Act brought it inches from approval.

The new act’s civil, criminal, and border measures promise considerable reforms. Trademark owners can:

1. Expect earlier sanctions on counterfeiters. The bill allows trademark owners to bring civil action against counterfeiters before they distribute their goods. In fact, new civil causes of action sanction manufacture, distribution and possession of counterfeit goods upon proof of intent to sell.
2. Leverage new criminal offenses to deter offenders. In addition to new civil penalties, the bill also promises fines and jail time for counterfeiters. This expansion of criminal liability enables officers to seek judicial authorization for wiretaps against suspected offenders.
3. Count on a completely revised border regime. The bill allows copyright owners to submit “requests for assistance” to the Canadian Border Services Agency. Upon approval of a request, the agency will detain commercial shipments of suspected counterfeit goods for investigation. The bill further authorizes border officers to furnish information about shipments and their importers to copyright owners for use in civil proceedings.
   

Despite these sweeping changes, some argue that the bill does not go far enough. The most persuasive attacks highlight the bill’s demands on the Canada Border Services Agency at a time when its funding has nosedived. Critics like Bearskin & Parr’s Adam Bobker have noted three additional weaknesses:

1. Lack of a statutory damages provision complicates cases. Damages in counterfeit products claims remain notoriously difficult to prove. Absent a statutory minimum in cases where damages prove elusive, the bill may prove ineffective.
2. Even strong suspicion does not guarantee detainment. For instance, the bill does not give authority to border agents to detain international shipments moving through Canadian checkpoints. 
3. The cost of detaining shipments may prove prohibitive. The bill would make copyright owners responsible for any costs incurred in detaining counterfeit goods. While this may not affect large corporations, smaller trademark owners may suffer.
   

   
The critiques have not prevented copyright owners and Members of Parliament from sounding their support. Both parties agree that the CCPA represents considerable progress in shielding consumers from the dangerous counterfeit goods currently pervading Canadian markets.