Proceedings of the Standing Senate Committee on
Banking, Trade and Commerce

Issue 26 - Evidence

OTTAWA, Wednesday, June20, 2007

The Standing Senate Committee on Banking, Trade and Commerce, to which was referred BillC-47, respecting the protection of marks related to the Olympic Games and the Paralympic Games and protection against certain misleading business associations and making a related amendment to the Trade-marks Act, met this day at 4 p.m. to give consideration to the bill.

Senator Jerahmiel S. Grafstein (Chairman) in the chair.

[English]

The Chairman: While we do not have a quorum, I will read the preliminary to this hearing. I appreciate all of your cooperation. We understand the issues quite well; we have done our homework with respect to the transcript, but we have to deal with the issue. Icertainly want to hear from the opposition to this bill as well.

BillC-47 was referred to us yesterday. We are trying to fast-track the bill here — which is unusual for us — but as this is the requirement of the Olympic group and there is a possibility that we will adjourn in the next day or two, we want to deal with the issue as a priority matter.

According to Industry Canada, the bill would ``provide special, time-limited intellectual property protection for Olympic and Paralympic words and symbols in the lead up to the Vancouver 2010 Winter Games.''

I am glad you got the Olympic Games. I was on the Olympic committee for Toronto twice and we did not win the games. Congratulations to you.

To continue: According to Industry Canada, this ``would improve the ability of the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games to negotiate sponsorship agreements with businesses.''

In particular, the bill would create a separate legal framework for Olympic trademarks in anticipation of the 2010 Games, although the proposed provisions are not exclusively tailored to these games and could apply to any Olympic Games that Canada may host in the future. Consequently, the committee believes that it is important to hear from the stakeholders on BillC-47, since its effects are not limited to the 2010 Olympic Games.

Moreover, the bill would extend trademark protection to any marks or promotions that, if used, without authorization by a business would be likely to mislead the public into believing the business is an official sponsor of the games, a practice commonly known as ambush marketing.

It would also provide applicants with expeditious access to injunctions against anyone believed to be in violation of the legislation. We will be hearing about that issue.

Within that context, I am pleased to welcome Mr.Colin Carrie, Parliamentary Secretary to the Minister of Industry, along with departmental officials. Following the presentation by the parliamentary secretary, we will hear from a number of stakeholders.

We now have a quorum.

Please proceed, Mr.Carrie.

Colin Carrie, M.P., Parliamentary Secretary to the Minister of Industry: I am pleased to be here today to examine BillC-47. I understand my time is short. I will briefly explain to you the way in which this legislation safeguards the interests of ordinary Canadians.

Why is it needed? BillC-47 is needed for two reasons. First, it follows up on a commitment Canada made to the International Olympic Committee during the bid phase of the 2010 Winter Games to adequately protect the Olympic and Paralympic brand if the games were awarded to Vancouver. Second, it enables the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, or VANOC as it is known, to maximize the private- sector participation necessary to make the Olympic Games a financial success.

How does it work? BillC-47 is a straightforward piece of legislation —

The Chairman: We have the translators and our important people who make this an official record, the Hansard reporters, so a touch slower, please.

Mr.Carrie: BillC-47 is a straightforward piece of legislation. It protects the most valuable Olympic and Paralympic marks and symbols by prohibiting their use in connection with a business, except with the permission of VANOC, until 2011 and, therefore, the Canadian Olympic Committee or the Canadian Paralympic Committee. It also prohibits parties that are not official partners of the Olympic Games and Paralympic Games from promoting themselves in a manner that would lead the public to think their business or goods are associated with or endorsed by the Olympic or Paralympic Games or an organizing committee. This type is behaviour is sometimes referred to as ambush marketing.

Finally, it provides remedies that VANOC and its partners can exercise if someone contravenes the legislation. In particular, it makes it easier to put a stop to such behaviour through the issuance of an interlocutory injunction while court proceedings are pending.

Safeguards. As I mentioned, BillC-47 gives the Olympic Games organizers and their sponsors the ability to protect their exclusive rights over the Olympic brand. However, it also contains a number of safeguards to ensure that it does not unfairly impact the lives of ordinary Canadians. The most important thing tounderstand about BillC-47 in this regard is that it has no application outside a commercial context. To be specific, it only prohibits the unauthorized use of a protected Olympic or Paralympic mark when it is used in connection with a business.

Likewise, the prohibition against ambush marketing is only relevant in relation to a person's business, wares or services. To drive this point home, the bill also contains two ``for greater certainty'' provisions confirming that the use of a protected mark in news reports for the purposes of criticism or parity or in artistic work is not used in connection with a business and thus is not prohibited.

Furthermore, even where a protected Olympic or Paralympic mark is being used for commercial purposes, the bill will not apply if the use in question began before March2, 2007, the date of its introduction in the House of Commons, or if the use is incidental to the nature of the business, such as its geographical location — 2010, Vancouver street, for example — or the origin and nature of its goods or services. I should add that a similar exception exists for athletes who wish to use the words such as ``Olympian'' or ``Paralympian'' for purposes of self-promotion before and after the games.

Finally, VANOC itself has committed to use its intellectual property rights under the bill in a disciplined, sensitive, fair and transparent manner and will develop guidelines to that effect as part of an education campaign.

I will conclude my remarks by touching on domestic and international precedent.

Canada passed special legislation for the 1976 Summer Olympic Games which enabled the Montreal organizing committee to act swiftly in the face of potential commercial misuse of the Olympic symbols. Since the 1990s, many other Olympic-host nations have enacted similar intellectual property legislation. The government believes Canada can and should do the same through BillC-47. Ilook forward to your questions.

Senator Moore: What are the exact dates of the games, Mr.Carrie?

Susan Bincoletto, Director General, Marketplace Framework Policy Branch, Industry Canada: It starts February10.

Senator Moore: That is the opening, through until?

Ms.Bincoletto: The games take place over 17 days. Following the Olympics, there are 10 days for the Paralympics.

Senator Moore: Yes. Do they start on the 28th? When do they commence?

David Guscott, Executive Vice-President, Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games: They run from March9 to March21.

Senator Moore: The bill will give VANOC the authority to license people who want to produce merchandise anywhere in Canada related to the games, whether it is the Olympics Games or the Paralympic Games?

Mr.Carrie: Yes.

Senator Moore: I see at the back of the bill a common expiry date of December31, 2010. Why do we have that expiry date?

I guess there would be residual sales leading up to the games, as well as at them. My question is: Why is that six months; why is it at the end of the calendar year? Is it for administrative purposes? What is the reason for that?

Mr.Carrie: It was decided that that would be the protection period. It is in agreement with what other countries have done.

Douglas Clark, Director, Patent Policy, Marketplace Framework Policy Branch, Industry Canada: That is right. Recent legislation in Australia — for example, for the Sydney Games — ended at the end of the games year. I should mention that, at the outset, when the organizing committee approached us to bring forward this legislation, they requested that the special protection end in 2012. This was a bit of a compromise solution.

Senator Moore: That is a bit of a reach — 2012.

When did the organizers of VANOC come to you and ask to get this legislative protection for the marks? When I say ``VANOC,'' does it also administer the Paralympic Games?

Ms.Bincoletto: Yes, they do.

Senator Moore: When I say that, I mean both sets of games. When did they first come to you seeking this legislative protection?

Ms.Bincoletto: They came to us about 18 months ago with a request for special legislation that would protect their Olympic and Paralympic marks and symbols — as well, and especially, protection against ambush marketing, which is the unfair business association with the games.

It took a bit of research on our part. We wanted to ensure that we clearly understood what other jurisdictions had done. We did some analysis and went back and forth with the organizing committee to better understand what they were seeking, what was the presumed economic harm. We came to the view, with this bill, that this contained enough checks and balances to better protect the sponsors and the partners that are part of the Olympic movement. At the same time, it would allow for legitimate businesses to continue to operate without being unduly affected by this bill.

Senator Moore: On page12 of the bill, at the back, there are the often-seen five Olympic rings. Is that not copyrighted and trademarked throughout the world, or do they have to do a full registration in every country where the next set of games is held?

Ms.Bincoletto: Trademarks are territorial. You need to register trademark protection in every country. That is what the COC and VANOC do.

Senator Moore: Do they require this as part of Canada's application — that whoever is the successful city will protect their marks?

Ms.Bincoletto: Yes — will provide adequate protection of the Olympic marks.

Senator Harb: It is really quite striking, the fact that someone would come in and try to take advantage of a situation.

In this particular case, ultimately, the ones who are losing are the athletes themselves. Is that not the case?

Mr.Carrie: Yes. One of the wonderful things about this, if there is any money left over, there will be a legacy for Canadian athletes. It is very important that we protect the sponsors so that, in the future games, they will continue to invest and they feel that their investment has been protected.

Senator Harb: My colleague raised the issue of trademarks. Iwant to ask you about the intellectual property protection mechanism that we have in Canada. Is that not strong enough to provide the necessary protection in this particular case? If so, what do you suggest should be done with it? Should we strengthen that legislation at some point in the future? What is the case with that?

Mr.Clark: You are right. Many of the marks you will see on schedules 1 and 2 of this legislation are already registered as either official marks or trademarks. Some are not, and we can provide you with a breakdown of that, if that is of interest to you.

One of the original rationales for the legislation, for having schedules and further entrenching the protected status of these marks, was that there was uncertainty in the case law as to the status of VANOC and the COC and CPC in terms of their eligibility for what is called ``official mark protection.'' In order to benefit from official mark protection under the Trade-marks Act, you have to be considered a public authority; and the test under the case law to be considered a public authority has waxed and waned over the years. Therefore, we thought it would send a signal to the business community that the government is serious about protecting the exclusivity over these marks, as well as further corroborating the existing protection under the Trade-marks Act for these same marks.

Senator Harb: Why the expiry date? Why, for example, would not countries that have hosted the Olympics, each and every one, introduced legislation that is permanent in nature? My thought is that if a Canadian company were to do ambush marketing when the Olympics are held in Canada, perhaps the same company can do ambush marketing when the Olympics are held in other countries. Why is this legislation not being made permanent?

Mr.Carrie: You make a good point. There are other countries that have done that. I believe the United States made its legislation permanent.

Mr.Clark: Yes, in the United States and in a few other countries, it is permanent. It depends on the types of marks you are talking about. For example, in Australia, they have permanent protection for the generic international marks, whereas they had only temporary protection for the marks related exclusively to the Sydney Olympic Games.

We have emulated that model. The marks in schedule 1 are the international generic marks, and they will remain protected under this legislation after 2010. The marks in schedule 2 are specific to the Vancouver Games, and they will expire at the end of the games here in December 2010.

Senator Harb: In the studies you have done — especially the one looking internationally at the magnitude of the problem — can you tell us whether you have quantified the figures in dollars and cents here? What are we talking about in terms of the total cost, both to the economy and for the Olympics themselves, in the event of a situation where we have ambush marketing or people infringing on the intellectual property rights?

Mr.Carrie: It is very difficult to put a number on that because most of it would not get caught. It is similar to the Ottawa Senators hockey club a couple of weeks ago; there were already counterfeit shirts out and a tremendous amount of money was being made. It is hard to estimate exactly how much. Do you have a number, Ms.Bincoletto?

Ms.Bincoletto: No, we do not have a figure. However, what is becoming clearer — and I am sure you will hear from the organizing committee after our appearance here — is that there is more reliance on private funding. With that comes the need, on the part of the private companies that put millions of dollars into this endeavour, to ensure that there is certainty they will have the exclusive marketing rights.

Senator Meighen: I understand similar legislation was passed for the 1976 Olympics in Montreal. What lessons did we learn from that or what problems arose that you are endeavouring to avoid here?

Mr.Carrie: It was mostly the problem of the ambush marketing. As we were stating, right now, it is important to have private funding for the Olympics because they are so expensive. The advantage we have by having this legislation here is that the investors will have confidence in what they are getting for their investment. Again, Canadian athletes will benefit from the legacy after the games — the millions of dollars, hopefully, that are left over. We saw it in the Calgary Games, the wonderful infrastructure. I believe there was $76 million left, and it has even grown from there. This is a great investment for Canada's future.

Even the number of medals has increased since Calgary. Now Canada has the money to put into our Canadian athletes. We are doing a better job every year; it keeps getting better.

Senator Meighen: Is the sunset clause a generally accepted practice? Also, is it generally accepted which protections should be sunsetted and which ones should not around the world?

Mr.Carrie: As Mr.Clark said, it is a compromise. We all understand that manufacturers will manufacture products for the games and they will need a certain amount of time even after the games to sell them. We want to protect them for a reasonable amount of time. We have a reasonable compromise here.

Mr.Clark: As I said, there are various models, but most of the legislation that we looked at had both a sunset clause for games-specific marks and ambush marketing and easier access to injunctions and then more permanent protection for the more generic marks, but it does vary. We tried to emulate the jurisdictions that had similar regimes in place already under trademark law.

Senator Meighen: To which countries do you refer?

Mr.Clark: Australia, New Zealand and the U.K.

Senator Eyton: In our materials, there is a reference to a commitment that our bid made at the time of winning the Vancouver-Whistler games. What was the nature of that commitment? I had the honour of being co-chair of the 1996 Toronto bid. I do not remember any commitment of that exact nature. Could you elaborate on the nature of it?

Ms.Bincoletto: At the time that Vancouver was seeking the bid for the Olympic Games, a letter was sent to the International Organizing Committee committing to ensuring that Canada would provide appropriate legal protection for marks and against ambush marketing. We then endeavoured to examine our trademark law. As my colleague Mr.Clark mentioned, there are currently protections under the Trade-marks Act for these Olympic marks, either through regulatory marks or through official marks. Because of some uncertainty that surrounds the status of these organizing committees and the COC and CPC — potential problems in terms of their status as public authorities — it was felt that it needed some bolstering. We worked to strengthen the valuable marks of the International Olympic Committee and the marks that VANOC brought to us as being also very valuable for the Vancouver Olympics, and we entrenched these protections in this special piece of legislation so that they would not be ``challengeable.'' At the same time, ambush marketing and any protection against it is currently not protected under the Trade-marks Act, so we added additional protection through this bill.

Those were the commitments. What transpires here is a reflection of those.

Senator Eyton: Theoretically, some forms of ambush marketing could be attacked, could they not, under existing law? I am really asking what has been done in the past in order to protect trademarks.

Ms.Bincoletto: There is a similar concept in the Trade-marks Act of passing off — I will let my colleagues explain that a bit more — but it does not necessarily deal with what we are trying to capture here, which is a false association with the Olympic movement. ``Passing off'' in the Trade-marks Act here is passing off a product, a good or service. It is giving the impression that in fact you are associated with the Olympic movement, that you are a sponsor when you are not.

The concept is similar but it is not captured in the Trade-marks Act. We needed to actually construct a different position.

Senator Eyton: That combines then with the injunctive relief you have provided in the legislation, I suppose?

Ms.Bincoletto: The injunctive relief would apply to the protection of marks and against ambush marketing, yes.

Senator Eyton: There are two categories of those who ambush. There are those who have some claim, right or entitlement — for example, Michael Jordan and Nike. Everyone knows if he stands around that he is Mr.Nike. The materials refer to an example where, in the last summer games, he covered the Reebok mark to show he was a true Nike man. I have some sympathy with that because he gets about $25 million a year from Nike. Everyone knew that he had that association, but he was still invited to come and they were pleased to have him there. I do not regard that as ambush marketing because of the entitlement. A similar case would be a sponsor of the Canadian ski team that has invested money and time bringing them along.

Is there any distinction in the legislation? I could not see any between what I call ``ambushors'' with entitlement and those who are parasites riding on the popularity of the Olympic movement. Is there any distinction?

Mr.Clark: That will be a determination for the court to make, obviously, based on a contextual reading of the relevant provisions and the objective and reasonable assessment of the specific facts before them. It is hard to say in advance what scenarios would constitute ``ambush'' and what would not. I have heard from many people that it is hard to define but you know it when you see it. We are giving some credit to our courts in this regard.

As my colleague Ms.Bincoletto mentioned, there is a similar provision in the Trade-marks Act as it stands, namely, the prohibition against passing off.

To clarify on that point, ``passing off'' is where a company promotes itself or its goods in a manner that misleads the public or is likely to mislead the public that the goods originate with another. You are selling your goods and misleading the public into thinking, say, that the goods are made by Nike, for example, when they are not. There is ample case law interpreting that provision. It is a fairly non-controversial provision that has been around for many years. The court would find some support in that case law and come to a reasoned and rational determination on the basis of the facts.

Senator Eyton: I found your timing in 2010 as a kind of expiry strange. It seems to me a sponsor that has that association should be a sponsor before, during and after, and have credit for that. Imake that comment.

Senator Goldstein: There is a French expression that states that if you grasp too much you are left with very little. I am wondering whether you have considered the situation of a Greek restaurateur in New Brunswick who decides to name his restaurant the Olympian Restaurant. My reading of this statute is that he would be captured by the statute. Is there anything in the statute that Ihave missed that would exculpate him?

Mr.Carrie: Yes, if he had used that name before 2002.

Senator Goldstein: I know about that. I am talking about afterwards. Leave the grandfathering out for the moment. If we pass bill this tomorrow and it receives Royal Assent on Friday, what happens to the fellow in New Brunswick who opens his Olympian Restaurant on Tuesday?

Mr.Clark: As Mr.Carrie tried to explain, if the restaurant isalready called the Olympian Restaurant, then the name is grandfathered under this legislation. If the restaurant is starting up on the day after we pass this legislation, this legislation will not make any difference because those terms, as we discussed at the outset, are already protected under the Trade-marks Act as either registered trademarks or official marks.

You would be better served by directing that question to the Vancouver Organizing Committee as to whether they would actually bother to prosecute that person. Unless there is some direct and substantial economic harm to one of their sponsors, itwould be doubtful that they would bother litigating a case such as that.

Senator Goldstein: We do not have much time, so I will not debate it with you, but some of us are concerned about that. Leaving it in the hands of the Vancouver Organizing Committee, which, by definition, will be enthusiastic, is not a good protection for Canadians.

The Chairman: We will expect the Olympic committee to deal with that when they come to the table.

Senator Moore: This question relates to Senator Goldstein's question.

Clause 2(3) reads:

A mark set out in column 1 of Schedule 2 is considered not to be an Olympic or Paralympic mark after the corresponding expiry date set out in column 2.

That date is December31, 2010.

However, do the word marks set out in column 1 of schedule 1 remain in place? Who owns them?

Mr.Clarke: Everything on schedule 1 remains in place. After the end of 2010, the exclusivity over those marks reverts to the COC and the CPC, and VANOC is no longer involved in policing those marks.

Senator Moore: They own the words ``faster,'' ``higher'' and ``stronger,'' or only when they are used in that order and combination?

Mr.Clarke: Correct.

Senator Moore: I could use ``faster'' or ``stronger'' separately and not be in trouble?

Mr.Clarke: That is right.

Senator Moore: I am from Nova Scotia. In Halifax, there is a taxi company called Olympic Taxi, and we have a community centre called Olympic Gardens. What about those entities?

Mr.Clarke: They would all be grandfathered.

Senator Moore: Where does that clause appear?

Mr.Clarke: It is in clause3(4).

Ms.Bincoletto: The two important provisions in the bill are theambush marketing provision and the interlocutory relief. Those provisions are set to expire on December31, 2010. Therefore, what is happening is that the teeth of the bill really end as of 2010. The existing protection under the Trade-marks Act would continue past 2010, with all the normal remedies that are currently at the disposal of any rights holder that holds trademarks or official marks. This simply provides additional protection.

Senator Moore: This is legislative.

Ms.Bincoletto: Yes.

Senator Moore: Are all of the marks on these schedules currently registered at the Canadian Intellectual Property Office?

Mr.Clarke: Some are and some are not. We have exact numbers on that. If you want those figures, we would be happy to provide them.

Senator Moore: Yes, if you could provide that to the clerk.

The Chairman: We are delighted to welcome our next set of witnesses. We have Brian McPherson, Chief Operating Officer, Canadian Paralympic Committee; from the Canadian Olympic Committee, Mr.Ragagnin, Chief Operating Officer; Cynthia Rowden, Past President, Intellectual Property Institute of Canada; Jasmine Northcott, Athlete Forums Director and Operations Manager for AthletesCAN; and David Guscott, Executive Vice-President, Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games.

Welcome to you all. I think I have told you that we are under a tight time constraint, so if you could make your presentations brief.

Brian McPherson, Chief Operating Officer, Canadian Paralympic Committee: Thank you for this opportunity to speak to you today. I will keep my comments brief.

The Canadian Paralympic Committee supports any initiative that benefits Paralympic athletes, and BillC-47 does benefit Paralympic athletes. In short, BillC-47 is an opportunity to increase the level of Paralympic brand protection — thereby increasing brand value — and financial support from corporate Canada into the Paralympic sports system and into the hands of Paralympic athletes.

I must say that this is not only important in the lead up to the 2010 Games but, most important, after the 2010 Games, from a legacy point of view. We will be out in the marketplace following the 2010 Games trying to renew these sponsors. The more brand value there is, the better the opportunity for us to secure those corporate sponsors for the long term.

Lou Ragagnin, Chief Operating Officer, Canadian Olympic Committee: I wanted to leave the Senate committee with two thoughts. The first is legacy. This bill is all about legacy for sport in Canada, for our communities and for the public at large. We believe that under this bill legacies — as they were in Calgary and Montreal — will continue to exist and will be created in Vancouver. We believe that by passing this bill, those legacies will be, in large part, a strong supporter of sport in this country.

Second, partnerships are relevant for the sustainability of sport in this country. We have developed strong public/ private partnerships between the private sector and government in supporting high-performance sport. We believe this bill helps those private partners continue to invest in sport on an ongoing basis, with the belief that they will be protected in doing so and again helping to create those legacies.

I leave you with those two thoughts.

The Chairman: We do have some objections to this bill and I want to allow time for that.

Cynthia Rowden, Past President, Intellectual Property Institute of Canada: I will provide some background about who our members are, because I think that helps to explain our comments. The Intellectual Property Institute of Canada, IPIC, represents virtually everyone who applies to register a trademark, copyright, patent or design in Canada. Similarly, our members will be representing virtually everyone who is involved in an intellectual property dispute on one or the other side. When someone goes into court to debate this legislation, chances are that our members will be acting for both the plaintiffs and the defendants. For that reason, we come before this committee today with a degree of impartiality that other members may not have.

We made submissions before the Commons committee and we were pleased to see one amendment there that protects the rights of current Olympic athletes to continue to refer to themselves as such, potentially in a business context, but we have serious concerns regarding the change in the rules for interlocutory injunctions found in clause6, that is, the provision that permits the court to ignore the test of requiring irreparable harm in an interim or interlocutory injunction.

An interim or interlocutory injunction is an extraordinary remedy, one where an applicant to the court is requesting that the court orders certain activity to cease before hearing witnesses, before full legal argument and before a trial. It is an extraordinary remedy. This bill takes away from the court the necessity to consider irreparable harm.

There are three tests that are normally required to succeed in an application for an interlocutory injunction. I know I am speaking to some lawyers on the other side. The first test is to establish you have a strong or prima facie legal case.

The second requirement is to show that the balance of convenience rests with the person seeking the injunction. That means that it is easier for the activity to be stopped than it is for the plaintiff to continue to bear the allegedly infringing activity.

The third requirement is that it must be demonstrated to the court that there will be clear evidence of irreparable harm suffered should the injunction not be granted.

All plaintiffs who go to the courts now must satisfy all threerequirements. This bill would take away one of those requirements for this special group of plaintiffs. IPIC is behind the concept of the bill. We frankly disagree that the current intellectual property regime in Canada does not give adequate protection to the Olympic organizations and the Olympic marks. That said, we think the bill will probably permit Olympic organizations, sponsors and those who will benefit from the bill to say they have special protection. There is a benefit in that.

However, when it comes to access to the courts, we think everybody should appear on the same footing. IPIC as a group may feel that access to the court could be improved and interlocutory injunctions might be easier for everybody to obtain. That being said, we want the rules to be the same for everyone.

With that background, we are submitting that the provisions of clause6 of this bill should be deleted.

We have other concerns raised in our written submissions. We continue to be very concerned that licensees or sponsors will have the right to access of the court in the place of VANOC. Given the rights that are being provided under this legislation, which are very strong, there are super trademark rights, we think they should be exercised by VANOC only and not by sponsors.

Similarly, we think the use of the schedules has the potential for mischief. In Whistler, for example, if someone wants to put up a sign for their hotel business saying, ``Welcome, visitors, to Canada's winter games,'' they will find themselves potentially afoul of this legislation. We think that leads to the potential for a lot of trivial complaints that will cause a lot of businesses harm, when everybody in Canada is being asked to come on board.

As I said, I want to leave you with our primary concern, the one regarding irreparable harm.

Jasmine Northcott, Athlete Forums Director & Operations Manager, AthletesCAN: On behalf of Canada's national team athletes and our board of directors, we are pleased to present to you today. AthletesCAN is the collective voice of national team athletes in Canada. We represent over 2,500 Olympic, Paralympic, Commonwealth, PanAmerican and Aboriginal athletes.

We have had the opportunity to extensively review BillC-47. We have consulted with our athletes and our partners. As a result, we are here to support the government's effort to better high-performance sport in Canada. We recognize the need to protect sponsors and licensees who have and will contribute significant resources to the 2010 games. However, we bring to the committee's attention, and we brought to the House of Commons Industry, Science and Technology Committee's attention, the need to entrench athlete rights within this bill.

We believe it is possible to create an environment for both the rights of the sponsors and the licensees and our athletes. It was our recommendation to the House of Commons committee that protection of athletes be provided under BillC-47 with the adoption of a simple amendment, which we identified as the protection of identity for Olympic and Paralympic athletes. Olympians and Paralympians are those athletes who have competed in Olympic and/ or Paralympic games. These athletes have earned the right to call themselves Olympians and be referred to by their sponsors and supporters as Olympians and Paralympians.

In Australia, where similar legislation exists, provisions were made to protect the rights of athletes, and Canadians deserve these same rights.

We look to this committee to support provisions within BillC-47 to entrench the rights of athletes. It is the recommendation of AthletesCAN that BillC-47 include a provision by way of a simple amendment to protect the rights of athletes to identify themselves as Olympians and/or Paralympians who have participated at past Olympic and/ or Paralympic games, to speak to their accomplishments freely, the right to reference as factual experience and to either promote themselves or be promoted by their sponsors without penalty.

We thank the committee for this opportunity to present. Iwelcome any questions.

Mr. Guscott: Iwelcome the chance to appear before the committee and explain how important this bill is to those of us responsible for organizing and planning the Vancouver 2010 Olympic and Paralympic games.

Two primary items are of great interest to us in this. First, this legislation fulfills a promise made in 2003 when Canada was bidding for the Olympic Games. The promise was made as part of that bid. It was explicitly asked of the Prime Minister of the day where he stood on this issue, and it is incorporated in the contract that we signed with the International Olympic Committee that there be legislation to this effect.

The second piece to this is more than just the principle of the legislation. The promise of the legislation has been extremely important to us as we have gone to sponsors to find their support for the games. It is something that has improved the business case for the investment that those companies are making, and they are making very large investments in this. It has improved the business case for them to know that others will not be able to pretend to be Olympic sponsors when they are not. Legislation to this effect would prevent that. The value of that investment they make has therefore been greater, and they have been able to justify a stronger commitment.

That commitment is so great that we are able to put on these Olympic Games with all of their operating costs paid for by private-sector contributions in that way. That means the taxpayer has not been on the hook for those particular pieces. We have more sponsors to approach yet, and we have a commitment to the sponsors that we already have on board.

I close by saying that, as has been mentioned already, the money that is not used in the operating costs of the games goes into a trust that will be a lasting legacy for athletes in the future. It is something that happened in Calgary, and we were hoping to leave an even larger legacy after Vancouver 2010.

The Chairman: Because of the timing, I propose to ask you torespond specifically to Ms.Rowden's concerns and Ms.Northcott's concerns. They are two very specific items. Iask you to briefly respond to them, and then I will ask the representative of the ministry to come back and give their explanation. We are looking for any of the three of you that would like to respond.

Mr.Guscott: I would be happy to start.

Senator Campbell: Why would these people be responsible for responding when we could be asking questions and they could be responding to us?

The Chairman: Let me proceed this way. You will have an opportunity to ask questions, Senator Campbell.

Mr.Guscott: I will ask Ms.Northcott to verify this, but the athletes' provision she is speaking of was in fact an amendment brought in during the standing committee in the House of Commons. I think what Ms.Northcott is referring to is the need to verify that provision.

Senator Tkachuk: To ensure the amendment is passed.

Mr.Guscott: Yes.

The Chairman: Your concerns have been dealt with?

Ms.Northcott: Yes, but we hope those amendments stay true to the document and continue forward.

The Chairman: We have the bill as amended before us.

Senator Tkachuk: She has obviously watched previous Senate committee meetings.

Senator Campbell: The first question I have is to Ms.Rowden. Would it be fair to say that, with regard to these games and with regards to the changes that are made, they are being made because the Olympics are a one-time, short- time event? By the time you get a chance to deal with an issue, the games would be over or the person who is doing the bad deeds would be gone. I understand your concerns, but I think what we have here is such a short time frame that a person who wanted to could get in and out so fast. Is that not an issue we should be addressing?

Ms.Rowden: I answer this by saying there are very serious business matters that require urgent attention of the courts, and the parties have managed to get access to the courts. I suspect that if there are serious issues with respect to infringements under the statute, the parties will find a way to get themselves into court.

The other thing is that getting rid of irreparable harm is not really dealing with the timing issue. The timing issue will be dealt with under the heading of the balance of convenience.

The courts will still be looking at whether or not an injunction will be granted and will consider the timing issues by looking atthe second of the three tests that are required in assessing whether an injunction should be granted. The timing issue will beconsidered. I am sure that VANOC and the Olympic organizations will be well prepared to argue why it is important for an injunction to be granted on those timing issues.

Senator Campbell: That may well be.

I am pleased that a company can get before the courts quickly. That is great. Chances are, however, that the damage being done to them is not of such a nature that they cannot continue. These companies will continue on hopefully for years. VANOC ends on a certain date. I would argue that it very much is all about irreparable harm.

Second is your concern about the Whistler Games. It is incumbent on us to spell out exactly what is proper and what is not. This has been going on for years. It happened in Montreal, not so much in Calgary. I suggest to you that by spelling this out, it gives everybody a level playing field.

I also suggest, since I am from Vancouver, that VANOC would be loathe to bring a big hammer down on a little operator in Whistler. If you have any idea of what the press is like in Vancouver, they would eat them up and spit them out. Do you not think it is best to have a level playing field?

Ms.Rowden: I think we are being asked to assume a level of activity that VANOC will or will not take with respect to this legislation. We do not know.

The legislation is very clear on its face. When you go into court, the court will look at what the legislation says as opposed to whether or not there are guidelines. It may not get to court unless VANOC determines that, but the legislation is drafted to permit sponsors to go to court to enforce this legislation.

Senator Campbell: At the end of the day, this matter will be brought before a judge and a decision will be made in a court of law. It seems to me that that is the proper way to deal with an issue.

Ms.Rowden: The courts should be asked to deal with this issue in the same way they are asked to deal with any other issues, many of which involve serious business and health issues. This legislation deals with issues arising during the Olympic Games. IPIC's concern is that the rules will be different here. We are not persuaded that the Olympic Games is an occasion to change the rules for access to the courts.

Senator Campbell: If this comes to court, what would the other half of your organization be saying to me, those who do not agree with you and argue both sides?

Ms.Rowden: At that point, both parties will be going to court on rules established by the bill.

Senator Campbell: That is not the answer. What would they be saying in a court of law in answer to your concern?

Ms.Rowden: Our Trademark Legislation Committee has considered this matter and our members have asked us to make this submission. This submission is being made on behalf of our organization.

Senator Campbell: You are representing only half of your organization because the other half would be arguing against you.

Ms.Rowden: I am representing all of our members.

Senator Campbell: That is a schizophrenic position. Thank you.

Senator Meighen: Perhaps it is because I do not understand this area of the law very well, but is the extraordinary clause6 sunsetted to the extent that it applies to those words that are sunsetted?

Ms.Rowden: To the extent that it will be sunsetted, it will be done so by regulation. We have not seen the regulations. Similarly, with respect to the ambush marketing clause, it would be sunsetted by regulation and we do not know what the regulation is.

Senator Meighen: If I were the king of regulations and could assure you that the regulation would sunset it, would you feel better?

Ms.Rowden: Our concern remains that this changes the rules for certain applicants before the courts, and we do not think that is fair. We think all applicants should be playing by the same rules.

Senator Meighen: Would you feel better?

Ms.Rowden: No.

Senator Meighen: It makes no difference because it is not pure.

Ms.Rowden: IPIC is willing to change the rules for access to the courts for all parties in a fair way but not in this particular —

Senator Meighen: It makes no difference, in your submission?

Ms.Rowden: Yes.

Senator Moore: With regard to past Olympic and Paralympic athletes, Ms.Northcott, you say that you are now happy that those individuals are protected by this legislation.

Ms.Northcott: Yes.

Senator Moore: Where does that show up here?

Ms.Rowden: It is clause3(4)(i).

Senator Moore: Clause 3(4)(i) on page4 reads, in part:

(i) the use by an individual who has been selected by the COC or the CPC to compete, or has competed, in an Olympic Games or Paralympic Games, or another person with that individual's consent —

That could be a sponsor, Ms.Northcott, right?

Ms.Northcott: That is our interpretation of it, yes.

Senator Moore: Mr.Guscott, do you have any objection to that sort of thing?

Mr.Guscott: No, we absolutely support it. We think that is a very beneficial amendment.

Senator Goldstein: Mr.Guscott, you pointed out rather eloquently that passing this legislation was a contractual obligation that had been assumed by Canada. Surely, the details of this legislation were not in the contract. They were developed subsequently, were they not?

Mr.Guscott: That is correct, just as they were for London and for Sydney, etcetera.

Senator Goldstein: Therefore, making changes in the legislation but leaving the principle of the legislation intact would not do violence to the undertaking made by Canada.

Mr.Guscott: As long as the main provisions were intact, yes, Iagree.

Senator Goldstein: Ms.Rowden, clause10 provides jurisdiction to the Federal Court. I take it that this is not exclusive jurisdiction because provincial courts continue to have inherent jurisdiction to hear injunctions.

Ms.Rowden: On my notes, I have written ``exclusive?'' next to that clause. The Federal Court most traditionally hears trademark disputes. It has the most experience with trademark and passing-off claims.

Senator Goldstein: I have taken injunctions in the Superior Court in Montreal.

Ms.Rowden: The Supreme Courts of all provinces have equal jurisdiction. I am assuming the intent of this bill is that the Supreme Court of British Columbia would have equal jurisdiction.

The Chairman: If you do not mind, I would like Industry Canada officials to come back. Mr.Carrie, if you could bring back your key officials, I want to respond to Ms.Rowden's concerns.

While that is happening, Senator Angus has a question.

Senator Angus: I wanted to pursue this irreparable harm condition for an interim injunction. You say that you raised this concern in the House of Commons committee and it was not accepted, right?

Ms.Rowden: That is correct. No amendment was made to delete the provision.

Senator Angus: Did you have discussions with the officials on this subject?

Ms.Rowden: Yes, we did.

Senator Angus: Before?

Ms.Rowden: IPIC was not consulted with regard to this legislation. We were advised of the bill and held a conference call with our Trademark Legislation Committee prior to second reading of the bill, I believe.

Senator Angus: That was the first time you had any input on it.

Ms.Rowden: We were advised and asked questions with respect to the rationale for the various provisions at that time.

Senator Angus: In all these other analogous circumstances where legislation was brought in to the same end, did they have that provision?

Ms.Rowden: I cannot recall at this time. I think we approached this issue from the point of view that Canada is in a different position than many countries that have introduced legislation because there was not a vacuum of protection for the Olympic marks in Canada before this legislation. The Olympic authorities have not only registered trademarks, but since 1979, Ibelieve, they have made extensive use of a special provision in the Trade-marks Act that gives them the right to have marks published without examination or opposition. Once those marks are protected, they are not required to be renewed, and there is no challenge against those registrations, except in very limited situations. We looked at this from the point of view of there being very strong rights in Olympic marks currently. This legislation was definitely designed to add to them and to confirm them, but it also added things that were not there before, such as this change with respect to irreparable harm.

Senator Angus: I understand the protections were there to such an extent that they did not even pass a special bill for the Calgary Games.

Ms.Rowden: I am not sure if they did; I do not recall that. However, to give you an example, there is a special provision of the Trade-marks Act, to which I referred. It is called section9 by trademark practitioners. There are many pages of official marks that have already been protected. Every stick figure associated with an Olympic sport, every number, game and character have all been protected via that section in the past.

From the perspective of trademark practitioners, I would say that most of us have observed that those provisions have served the Canadian Olympic organizations very well in the past.

Senator Angus: You think this is overkill.

The Chairman: Mr.Carrie, Mr.Clark or Ms.Bincoletto, Iwould like you to respond to this very sharply. We have identified a concern and we want to satisfy ourselves on your thinking about this.

Mr.Carrie: This is basically an anti-abuse mechanism. It is a temporary measure and is only applicable during the time when economic harm would be the greatest.

Senator Campbell was right on the mark. When I was trying to get my head around it, I was thinking of the volume of counterfeiting. To expect all of these cases to get to court with 17 days is unrealistic. This is huge and worldwide. I believe this is entirely reasonable and it is not without precedent. Precedent exists for this provision in the legislation for the 1976 Montreal games, in laws in Australia and New Zealand, as well as in Canada. IP legislation, patented medicines and notice of compliance regulations provide automatic 24-month stays to pharmaceutical patentees seeking to prevent a suspected infringing generic competitor from entering the market.

The Chairman: As I understand the irreparable harm test, it is an extraordinary test. It raises the bar very high in order to challenge it. The history of this is quite interesting. An extraordinarily additional remedy was added to the other two cases because of the interlocutory nature.

Do you not believe that Mr.Carrie has made a valid point? We have had precedent for this in the past. It is an extraordinary measure, and my concern is that the perfect does not drive out the good. This is not perfect, but we are trying to balance the balance of probabilities here, and it is a difficult balancing act. The department and the House of Commons have looked at this question and come to the conclusion that, on the balance of probabilities, this is an appropriate methodology to protect holders.

Ms.Rowden: If any one of the Olympic organizations is seeking access to an interlocutory injunction, they must still go to court. Getting rid of irreparable harm will not impede their ability to get into court. They will still have to meet the test of an interlocutory injunction.

The Chairman: Because it is an extraordinary remedy.

Ms.Rowden: It is an extraordinary remedy, and I think it is so for all kinds of good reasons. We are assuming that every case that will go to court involves an egregious example of counterfeiting activity. There are many examples of ``Olympic Pizzas'' and ``Olympic Taxis'' that could also be found in the courts. We think everyone should be appearing there with rights that are similar to those of every other applicant. Changing the rules in this case does not seem to us to be justified.

Mr.Clark: We are in complete agreement with IPIC that all litigants should be treated the same when they go to court. That is a fundamental premise of the rule and I do not think anyone objects to that. I have been an IP lawyer for seven years. I articled at the Federal Court where most of these cases are litigated. I can tell you that IP rights holders are not treated the same as other litigants when it comes to seeking injunctions. Canadian courts are extremely reluctant to grant injunctions in IP cases because they believe the damage can be quantified monetarily, so that does not constitute irreparable harm. In the U.K. and the U.S., they recognize that continued infringement can permanently sully the value of a trademark in a way that does not easily lend itself to quantification.

As Mr.Carrie pointed out, that same sort of reasoning has been upheld by the courts in patent cases, and the government has seen fit to waive all three of those tests when it comes to pharmaceutical patents.

Finally, yes, it is an extreme and extraordinary remedy, but it is also one that originates in equity, as reflected in the fact that one of the tests is balance of convenience. Therefore, if a court thinks the defendant will be more aggrieved by the granting of the injunction than the plaintiff by not granting it, they will not grant the injunction.

Mr.Carrie: As a Canadian, I am very proud of having the Olympics here. We must all remember that we asked to have them here. The people of VANOC are outstanding citizens. To reiterate what I said in my opening comments, VANOC has committed to use its intellectual property rights under the bill in a disciplined, sensitive, fair and transparent manner and will develop guidelines to that effect as part of an educational campaign.

I think we owe it to these people to do this right. It is something we can be very proud of.

Senator Goldstein: Mr.Carrie, where is that commitment written?

Ms.Bincoletto: The CEO of the Vancouver Organizing Committee, Mr.John Furlong, sent a letter to the Minister of Industry committing to do exactly that, use this legislation in a disciplined manner and publish some guidelines so that the marketplace would be better equipped to understand what it can and cannot do under this bill.

Senator Goldstein: Could we have a copy of that?

Mr.Guscott: Yes.

The Chairman: Ms.Rowden, you have the last word.

Ms.Rowden: We think the rules should be well known to litigants and should apply to everyone equally. There are many important business and commercial interests that are involved in matters that appear before the courts. The Olympic Games is just one of many things that the courts will be looking at in terms of litigation and rights. We think the rules should apply the same to everyone who goes into court.

Just as it may be difficult for the Olympic organizations to argue that there will be irreparable harm, there may similarly be serious business interests that represented by the other side. We do not know until we see the cases. We think the cases should be decided in terms of existing laws that we all know and understand.

If it is up to the Olympic association to demonstrate irreparable harm, I have no doubt they will muster the evidence to do that successfully.

The Chairman: We have heard a contrary view on that.

I want to thank all the witnesses for being cogent and concise. There will be a transcript of this meeting. Some senators have suggested that this record can be part of any case, if people choose to adopt this record, because we are trying to satisfy ourselves that the proper parties are being properly protected. We know this is extraordinary, but there is a precedent for this. I remember very well the debate on the patent medicine question. That had huge positive public benefits as a result of reducing the test. We are trying to balance probabilities here.

I want a guarantee from the Olympic committee, before we proceed to clause-by-clause consideration, that that letter will be part of our record. Do I have your commitment to have that letter as part of our record?

Senator Goldstein: I have the letter and I will move that the letter and the enforcement policy be attached to our public minutes.

The Chairman: Fine; thank you so much. I appreciate that. Iwill agree to that and that will be part of our public minutes.

Honourable senators, I want to proceed, if we can, to clause-by-clause.

Senator Tkachuk: Do we all agree to that?

The Chairman: I am sorry, is there a question about that?

Senator Meighen: I have not seen the letter.

Senator Tkachuk: I do not have a question but —

The Chairman: I have the right as chairman to table a document if it is referred to by any witness.

Senator Tkachuk: I would like to be able to say ``I agree, too.''

The Chairman: I will ask for a motion. Normally, I do not have to for this because it is evidentiary, but I will ask for a motion.

It is moved by Senator Goldstein, seconded by Senator Tkachuk, that the letter be appended to our records.

Senator Goldstein: The letter and the enforcement policy.

The Chairman: Yes, and the enforcement policy.

All those in favour?

Hon. Senators: Agreed:

The Chairman: Contrary minded?

I will mark that unanimous. I would like to thank Senator Tkachuk for challenging my authority.

Honourable senators, is it agreed to proceed to clause-by-clause consideration of BillC-47, respecting the protection of marks related to the Olympic Games and the Paralympic Games, and protection against certain misleading business associations and making a related amendment to the Trade-marks Act?

Hon. Senators: Agreed.

The Chairman: Carried? Do I hear contrary minded? I will mark that unanimous.

Shall the title stand postponed?

Hon. Senators: Agreed.

The Chairman: I will mark that unanimous unless I hear a negative vote.

Shall the short title and clause1 stand postponed?

Hon. Senators: Agreed.

The Chairman: That is unanimous. Unless I hear a negative Iwill mark that unanimous.

Shall clause2 carry?

Hon. Senators: Agreed.

The Chairman: Any negatives? I will mark that unanimous.

Shall clause3 carry?

Hon. Senators: Agreed.

The Chairman: Are there any negatives to that? I will mark that unanimous. Shall clause4 carry?

Hon. Senators: Agreed.