Canada has introduced enhanced border control measures to prevent counterfeit and copyright-infringing goods from being imported into and exported from Canada. Under the previous regime, a rights-holder had to obtain a court order to prevent the importation of counterfeit and copyright-infringing goods. The new rules provide the Canada Border Services Agency (CBSA) with the authority to detain suspected counterfeit and copyright infringing goods, while allowing the rights-holder time to pursue civil remedies.

Key Features of Canadian System

The new measures strictly prohibit importing or exporting counterfeit and copyright-infringing goods. Two important features of the Canadian regime are: (i) CBSA officers now have the authority to detain goods they suspect are counterfeit or copyright-infringing; and (ii) the establishment of a “request for assistance” (RFA) process to allow the CBSA to disclose information and samples of detained goods to a rights-holder. This detention and disclosure by the CBSA will assist rights-holders in obtaining relief including through legal action in the courts under the Copyright Act and Trade-Marks Act. However, to participate in this process, a rights-holder must apply for an RFA from the Canadian authorities prior to the importation or exportation of potentially counterfeit or copyright-infringing goods. The RFA will identify the registered trademarks or copyrights held by the applicant and must be renewed every two years.

Taking Action Within the 10-day Notification Window

Once an RFA is in place, CBSA may detain suspected counterfeit or copyright-infringing goods for 10 days from the date the rights-holder is notified of the detention. If within that 10 days, the rights-holder provides the CBSA with evidence that it has initiated enforcement proceedings in the courts to obtain relief under either the Copyright Act or the Trade-Marks Act, the goods will then be detained until the rights-holder’s claim for relief is resolved or until a court orders their release. If no proceeding is commenced, the detained goods will be released at the end of the 10-day hold period. The rights-holder may also in some cases extend the hold period to 20 days upon request.

There is currently no fee for filing an RFA. However, rights-holders will be held responsible for the costs associated with the storage and handling of detained goods, and any eventual destruction. Security to cover these costs can also be required.