Anti-Counterfeiting Committee releases White Paper on CBSA/Request for Assistance Program

On December 17, 2020, IPIC submitted a White Paper to Minister of Public Safety Bill Blair concerning the Canada Border Services Agency’s (CBSA) Request for Assistance (RFA) program. The White Paper, drafted by the Anti-Counterfeiting Committee, discusses the successes and limitations of the RFA program, and recommends solutions to make the program more responsive and less burdensome for all stakeholders, including government agencies, brand owners, and individual border officers.  The RFA program aims to stem the import of counterfeit goods and is driven by owners of intellectual property rights (Rights Holders). It permits short term detention of imported suspect counterfeit goods and information sharing about such import, where the trademarks or geographical indications displayed on such goods, or copyrighted works embodied in such goods, have been recorded with the CBSA by the Rights Holders. Unlike in other jurisdictions, CBSA Officers are not empowered to destroy confirmed and uncontested counterfeit goods at the Rights Holder’s request. Unless the shipment is abandoned, Rights Holders must either reach an agreement with the importer or obtain a court order for destruction.  

Since the implementation of the RFA program in January 2015, more than 320 Rights Holders have enrolled, and 227 are currently enrolled.  Over 2,900 trademarks and 250 copyrights are now recorded in the RFA program.  To date, fewer than 500 shipments have been detained in Canada, in comparison to the tens of thousands of shipments detained annually in the European Union and the United States.

Notwithstanding the small number of detentions, Rights Holders who have been alerted to a suspect shipment have experienced overwhelmingly positive outcomes. Typically, when confronted by the Rights Holder, the importer of the detained goods agrees to abandon or give up their rights to the shipment within a short timeframe. There have been rare cases where Rights Holders needed to pursue litigation to obtain a court declaration to confirm their rights and destroy the counterfeit goods (e.g., where the importer is uncooperative, disagrees with the allegations, and/or is unresponsive).  Moreover, importers have typically agreed to pay for any detention costs incurred as part of settlement. The above outcomes demonstrate clear successes of the RFA program when Rights Holders engage, and its potential as a potent tool to stem the import of counterfeit products. Its continued success and effectiveness hinges on wider implementation and adoption of the program itself by the CBSA and Rights Holders.

Recommendations for strengthening the RFA program are detailed in the White Paper, available here.