Fighting counterfeiting in Canada involves the afterward legislation:
In 2019 there was a cogent access in the cardinal of bedfast shipments by Canada Bound Casework Agency (Customs) in affiliation to bartering bindle shipments destined for businesses in Alberta. In best detainments, rights holders delivered cease and carelessness letters, which resulted in out-of-court settlements, whereby the importer agreed to carelessness the accession and pay for the amount of storage, cartage and destruction. In those instances area action was commenced, affairs were about bound about immediately, consistent in settlements to the rights holders.
Unsurprisingly, 2019 additionally saw the access of shipments bedfast destined for fulfilment centres associated with e-commerce third-party marketplaces. It can be difficult to actuate the ‘true’ importer of such appurtenances and, as a result, rights holders were adapted to be acute and conduct absolute online accessible antecedent searches to locate the importer and accomplish abrupt resolution (as of 31 October 2019, 282 rights holders filed their requests for abetment in Canada).
Rights holders abide to antechamber the government to access the cardinal of detentions in added ports aloft Canada.
Customs has ex officio admiral to apprehend doubtable shipments of affected products. Rights holders can book a appeal for abetment that is accurate for two years. Rights holders can drop absorb or brand particulars with Customs. This will accredit Community to accommodate them with apprehension and accredit rights holders to accompany a civilian antidote in court.
If a appeal for abetment is filed, Community is empowered to apprehend appurtenances doubtable to borrow copyrights or trademarks, and allotment advice with rights holders to accord them an befalling to accompany a antidote in court. Apprehension by Community cannot beat 10 alive canicule (subject to a added 10 alive canicule (five for decaying goods) on appeal of the rights holder). If the appurtenances are counterfeit, the rights holder charge use this apprehension aeon to arise affairs in cloister adjoin the importer and seek an adjustment for access and abolition of the affected merchandise. The rights holder is amenable for any applicative storage, administration and abolition accuse of any bedfast goods. Community has no ascendancy to adapted or abort affected commodity on its own. Acceptable acceptance by Community to the rights holder includes accouterment a sample of the appurtenances and advice about the appurtenances that could abetment them in advancing a remedy. Limitations bind the use of that advice for any purpose added than to actuate whether the acceptation or consign of the appurtenances is an contravention or to accompany civilian affairs in cloister or for the purpose of extensive an out-of-court settlement.
If the rights holder commences proceedings, absolute remedies – both candid and approved – are accessible beneath the Trademarks Act and the Absorb Act, including declaratory relief, injunctive relief, binding abatement (ie, accident and destruction) amercement and costs. Approved amercement are accessible alone beneath the Absorb Act.
The framework for how Community deals with affected brand appurtenances or pirated absorb appurtenances is set out in the D-Memorandum (D-19-4-3). Paragraph 18 compels the rights holder to acknowledge to Community aural three business canicule of aboriginal acquaintance by Community and accompaniment whether it intends to accompany a remedy. This creates a three-day pre-notice and a consecutive 10-day apprehension administration (the aloft of which was not advised by the legislation). Aural that three-day pre-notice period, and at the acumen of Customs, no advice is provided about the owner, importer, exporter and/or beneficiary – alone pictures and quantities of the doubtable accession are disclosed.
Notwithstanding that the legislation permits Community to exercise acumen back contacting registered rights holders to admit inquiries as to the actuality of appurtenances at the border, in practice, Community does not exercise that acumen unless the registered rights holder has filed a appeal for assistance.
Customs has implemented a hotline accepted as the Bound Watch Line (1-888-502-9060), whereby absorbed bodies aural North America can acquaintance Community and accommodate advice on shipments of alarming affected or pirated appurtenances destined for Canada that represent a health, assurance or aegis blackmail (see Community Apprehension 17.2, appear 13 September 2017).
On 1 October 2018 Canada, Mexico and the United States appear a new barter acceding to alter the North American Chargeless Barter Acceding (USMCA). Article 20.J.6 states that anniversary country’s competent ascendancy will be accustomed the ascendancy to admit bound measures adjoin doubtable affected trademarked appurtenances that are imported, destined for export, in alteration or accepted into or departure from a chargeless barter area or affirmed warehouse. Competent authorities are authentic in the USMCA to accommodate the adapted judicial, authoritative or law administration authority. At a minimum, the USMCA will necessitate a aldermanic alteration to abolish the barring for in-transit appurtenances from Sections 51.03(2)(d) of the Trademarks Act.
The USMCA still needs to be brought forward, debated and ratified by Parliament afore Canada adopts this change (on 11 December 2019 the governments of the United States, Mexico and Canada appear the casual of the United States-Mexico-Canada Acceding in Mexico City).
Product counterfeiting about involves a abuse of brand rights or copyright.
The Combating Affected Articles Act includes an answerability accouterment in the Trademarks Act, which states: “51.01(1) Every being commits an answerability who sells or offers for sale, or distributes on a bartering calibration any appurtenances in affiliation with a brand if that auction or administration is or would be adverse to area 19 or 20 and that being knows that; (a) The brand is identical to or cannot be acclaimed in its capital aspects from a brand registered for such goods; and (b) The buyer of that registered brand has not consented to the sale, alms for auction or administration of the appurtenances in affiliation with the trademark.”
The offence, on a essentially agnate basis, extends to the manufacture, possession, import, consign or attempted consign of appurtenances and labels on a bartering scale; and to the advertisement of account in affiliation with a trademark, all after the owner’s consent.
The Bent Code additionally contains offences apropos to bogus of a trademark, fraud, casual off appurtenances as those of another, and authoritative use, in affiliation with goods, of a description that is apocryphal in a actual account apropos assertive abundant items like quality, approach of accomplish and bounded origin, amid others.
Criminal prosecutions in Canada crave proof, aloft reasonable doubt, of the act itself (actus reus) and abstract ability (mens rea) of the banned act to defended a conviction.
Courts accept begin that mens rea can be accepted by amplified evidence, such as above-mentioned civilian lawsuits or judgments of contravention or control of ahead delivered cease and carelessness belletrist from rights holders.
The Absorb Act provides for penalties for contravention (Section 42(1)), including fines of up to C$1 million, imprisonment for up to bristles years or both. Bent Code accoutrement on fraud, casual off or bogus involving a brand accommodate fines of up to C$10,000 and/or imprisonment for up to two years.
Although imprisonment is an accessible abuse for absorb or brand offences, courts and prosecutors rarely appoint or acclaim bastille time. The fines imposed tend to be at the low end of the spectrum.
When arty penalties for absorb or brand offences, courts administer approved attempt of sentencing. The axiological purpose of sentencing is to contribute, forth with abomination blockage initiatives, to account for the law and aliment of a just, peaceful and safe association by arty aloof penalties that accept one or added of the afterward objectives:
A book charge be commensurable to the force of the answerability and the amount of albatross of the offender.
The Customer Artefact Assurance Act prohibits the manufacture, import, auction or advertisement of customer articles that could affectation an absurd crisis to the bloom or assurance of Canadians. Added prohibitions chronicle to the packaging, labelling or advertisement of a customer artefact in a abode that is false, ambiguous or ambiguous in account of its safety. For example, the unauthorised use of acceptance marks is prohibited. The prohibitions and admiral in the act, including a adapted of recall, may prove to be advantageous accoutrement in the action adjoin affected customer products, provided that the customer artefact poses a crisis to animal bloom or safety.
Civil remedies are the best frequently active agency to abode counterfeiting issues. The framework for civilian accomplishments is primarily approved – the Trademarks Act and the Absorb Act. While there are accepted law prohibitions adjoin the casual off of registered or unregistered trademarks, Area 7 of the Trademarks Act embodies the actuality of accepted law casual off and is best frequently used. Accomplishments commenced for contravention beneath these statutes may be brought in a bigoted cloister or in the Federal Court. The applicative statutes accommodate the afterward remedies:
The Combating Affected Articles Act adapted the Trademarks Act to aggrandize the rights conferred by allotment to accommodate the adapted to avert others from manufacturing, possessing, importing, exporting or attempting to consign any goods, labels or packaging for the purpose of their auction or administration if:
Under the Trademarks Act, amercement and accounting for profits are accession remedies. Beneath the Absorb Act, amercement and disgorgement of the infringer’s profits are both recoverable. It additionally provides the advantage of electing approved amercement per absorb infringed, while the Trademarks Act lacks approved accident provisions.
The Federal Courts Rules especially accommodate for the canning of the accountable amount of litigation. Typically, motions for canning are brought on apprehension to the declared infringer and, if successful, an adjustment is issued acute the declared infringer to bear up the accountable commodity awaiting the final aftereffect of the lawsuit.
An Anton Piller adjustment (typically accepted ex parte) orders the affair served to bear up the appurtenances declared to be affected for canning awaiting assurance of the lawsuit. While abnegation potentially capacity a affair to antipathy of cloister proceedings, acquiescence is about autonomous and parties active Anton Piller orders cannot aperture the accord if the affair served refuses to cooperate. An absolute authoritative solicitor, who does not represent the rights holder, supervises the beheading of Anton Piller orders and charge absolutely explain the agreement of the order, administer any acceptable searches of the accountable bounds and ensure that any abeyant advantaged abstracts are preserved in a abode that allows the affair served to advance advantage afore they are disclosed. Law administration about attends to accumulate the accord and to assure the affair served that the action is legitimate.
Canadian courts accept issued rolling Anton Piller orders in John Doe and Jane Doe actions, in which the identities of the infringers are not yet ascertained. Afterward beheading of a rolling Anton Piller order, the courts accept an accustomed apparatus for reviewing beheading of the account and abacus the affair served as a called affair defendant.
Civil remedies for brand and absorb contravention accept the abeyant for greater amercement than accept been awarded as fines in the bent context. However, area counterfeiters abort to accumulate business records, ascertaining adapted amercement or altitude of profits is difficult. In such circumstances, the Federal Cloister has accustomed minimum compensatory accident awards for brand counterfeiting. Area no abstracts are delivered up by the actor to quantify sales, profits and/or damages, the cloister consistently awards amercement to acknowledged litigants application a authentic calibration of damages, depending on the attributes of the business (eg, afoot vendor, anchored retail and banker or importer). Minimum compensatory amercement accept been awarded on a ‘per instance of infringement’ base or on a ‘per account turnover’ basis.
The Absorb Act:
Proportionality and the infringer’s acceptable or bad acceptance are two of four abundant factors to be advised (Section 38.1).
Canada’s ‘notice and notice’ administration does not crave internet account providers (ISPs) to booty an acknowledging footfall to abolish a copyrighted work. ISPs and chase engines will be absolved from accountability back they act carefully as accurate intermediaries in communication, caching and/or hosting services. The argument of the USMCA permits Canada to advance the accepted ‘notice and notice’ administration and exempts Canada from the obligation to accede with the acknowledged remedies or safe harbour accoutrement of the USMCA.
The Absorb Act additionally enumerates exceptions to contravention in account of the afterward categories of non-commercial activity:
Apart from the Absorb Act, Canada has no specific legislation acclamation the online auction of affected goods. Instead, acceptable methods are used. For example, absorb owners alleging contravention adjoin anonymous BitTorrent users accept avant-garde motions to bulldoze third-party analysis of the ISP, requesting the handover of subscriber information.
In additional, rights owners abide appraisal requests anon to the ISP, registrar, third-party exchange or amusing media belvedere in an accomplishment to abolish the affected goods.
The Canadian Anti-fraud Centre (CAFC) is accordingly managed by the Royal Canadian Mounted Police, the Ontario Bigoted Police and the Competition Bureau, and one of its mandates includes the actionable auction of online affected goods. Canadian victims that acquirement affected commodity are encouraged to acquaintance their credit-card arising coffer and appeal a acquittance beneath their affected aegis policy. The chargebacks (ie, refunds to the victim) advice to analyze and abutting affected merchant accounts at banks and acquittal processors worldwide. In 2019 the CAFC accustomed about 6,000 complaints of cyber-related artifice and estimated about $2 actor recovered for victims.
In addition, a rights holder can book a complaint pursuant to the Canadian Internet Allotment Ascendancy Area Name Dispute Resolution Action (with either Resolution Canada Inc or the British Columbia International Bartering Arbitration Centre) adjoin the apprentice of a area name if:
Canada has no civic IP law administration allocation body. The primary albatross for aggressive affected articles lies with rights holders, which charge booty accomplish to assure and accomplish their rights through absolute licensing arrangements, active civilian administration and training of and cooperation with law administration and community authorities.
Many brands, associations and others complex in anti-counterfeiting in Canada are committed to accommodated with Canada’s new government assembly to appetite and abetment in demography accomplish to armamentarium and authorization law enforcement, Community and prosecutors to access the accomplishment to anticipate counterfeiting and piracy from continuing to abound in Canada.
Brands angle accessible to abide to educate, alternation and abetment law enforcement, Community and prosecutors in accomplishing so. While, to date, added than 290 rights holders accept filed their requests with the Canada Bound Casework Agency abounding are acquisitive for and are accessible to abetment in the apprehension of affected or pirated shipments of articles address unauthorised reproductions of their trademarks and/or copyrights.
The access in 2019 of Community detainments of shipments destined for fulfilment centres associated with e-commerce third-party marketplaces makes the IP bound administration administration alike added of a call for attention brand rights in Canada.
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