Reporting Intellectual Property Crime

A Guide for Victims of Copyright and Trademark Infringement

• Foreward
• Introduction
• Right Holder Commitments
• RCMP Copyright and Trademark Criminal Enforcement Policy
• RCMP Intellectual Property Crime Priorities
• RCMP Intellectual Property Crime Strategy
• Intellectual Property Crime Responsibilities
• Complaint Assessment
• Checklist for Reporting Copyright and Trademark Offences
• RCMP Intellectual Property Crime Coordinators

Foreward

Twenty years ago, most members of the public, as well as most police officers, had never heard of Intellectual Property Rights (IPR) Crime in Canada. Ten years ago, some might have seen counterfeit T-shirts or watches at flea markets but, for the most part, it was not considered to have been a significant problem.

Today, the situation is dramatically different both domestically and internationally. Organized Crime has discovered that the manufacturing and distribution of counterfeit goods are easy ways of generating huge profits rivalling those in the drug trade but with very little risk of getting caught. Even if apprehended and convicted, there is only a slight chance of incarceration.

The World Intellectual Property Organization, based in Geneva, estimates that counterfeit goods now account for hundreds of Billions of dollars worldwide. Virtually all major Organized Crime groups are now involved in the international production and distribution of counterfeit goods.

In addition to the tremendous losses to government tax revenues and the legitimate Canadian economy, recent seizures of counterfeit goods such as pharmaceuticals, electrical products, brake parts, contaminated shampoo and food products show that these unscrupulous counterfeiters care nothing about the health and safety of Canadian consumers.

Intellectual property is an important part of the Canadian economy and, as our country shifts towards an information based economy, intellectual property rights are increasingly more important. As such, the priority of criminal intellectual property investigations has increased especially when dealing with counterfeit products which represent a health and safety concern to the consumer.

In order to successfully undertake intellectual property crime investigations and prosecutions we require substantial assistance from rights holders. Rights holders are in the best position to detect and report intellectual property theft and are encouraged to report these crimes.

One of our primary aims with this handbook is to facilitate the process of reporting IP crime in order to ensure critical information is passed to us as efficiently as possible. We have established guidelines for reporting IP crime which, in our experience, are useful or even critical to help ensure a successful investigation and prosecution of offenders.

The Royal Canadian Mounted Police welcomes the opportunity to work together with you to reduce the risk to the health and safety of Canadians, reduce the funds being channelled to Organized Crime, and to protect the legitimate Canadian economy.

Superintendent Graham Burnside
Director, Federal Enforcement Branch
Border Integrity
Federal and International Operations Directorate
Royal Canadian Mounted Police

Introduction

In cases where you conduct preliminary investigations, we realize that you will gather significant information including evidence from witnesses, samples of the counterfeit products, surveillance reports, offender information as well as other types of intelligence. In these cases, please ensure the following:

Document all investigative actions:
In order to avoid duplication by us when you forward your complaints for criminal investigation, please ensure that your investigative actions are well documented. We will need to corroborate the information that you provide, but documenting all of your investigative steps will assist us in expediting our investigations in a timely manner while avoiding the unnecessary duplication of actions.

Preserve evidence:
In cases where you acquire evidence or receive exhibits for analysis, ensure that these items remain secured under lock and key. All of the handling and movement of the exhibits must be well documented and must include the time, date and signature of anyone who handled the products. The chain of custody of these items must be recorded and traced from initial contact up until the time they are required for court proceedings.

Contact us as early as possible:
Contact the RCMP - we will contact other appropriate agencies; When you believe that you are a victim of intellectual property theft, contact us as soon as possible. This will enable us to discuss the complaint with you in order to ensure that all investigative avenues are fully explored. Early contact allows for the coordination of our respective and appropriate investigative or other legal options. Further information can be obtained on the RCMP’s IP Crime website.

How can you assist us:
In all cases originated by the RCMP, the right holder or the general public, we will require the assistance of the right holder in order to conduct successful investigations and prosecutions. We are willing to commit our limited resources and expect a similar commitment in return. If the right holder refuses to provide assistance in a particular case, that lack of assistance may result in our refusal to initiate investigative action in future cases involving the same right holder. We need you to commit your cooperation throughout the investigation and prosecution.

Right Holder Commitments

Prior to undertaking a criminal IP crime investigation, we will ask you to commit:

• to supply an analysis of the offending goods;
• to supply witnesses for all court proceedings at your expense;
• to supply copyright or trademark registration certificates for court at your expense; and
• to supply a victim impact statement.

Under some circumstances, we may ask you to assist in the transportation, storage and destruction of offending goods at the conclusion of our investigation.

Please note that in some cases, due to privacy legislation, we may not be permitted to provide you with certain information or documents that you may request. In those situations, you will be advised of the nature of the restrictions and limitations.

RCMP Copyright and Trademark Criminal Enforcement Policy

The RCMP will record all complaints and allegations of copyright or trademark infringement and will criminally deal with each complaint or allegation on a case by case basis. Each case will be assessed for compliance with the Copyright Enforcement Guideline that identifies the type of criminal infringement appropriate for investigation and prosecution.

RCMP Intellectual Property Crime Priorities

The Copyright Enforcement Guideline specifies that the investigational priority will be commercial infringement at the manufacturing, importation and commercial wholesale distribution levels, working towards dismantling the entire criminal organization involved in the illicit activities. Infringement at the retail level is generally not an enforcement priority in its own right unless the investigation is used to target upwards or involves serious health and safety issues. The RCMP’s priorities are counterfeit products with:

• health and safety risks;
• links to organized crime; or
• large shipments.

All allegations from IP owners will be accepted even if they do not fall within the investigative mandate. The information will be retained for intelligence purposes and may be investigated, subject to available resources.

The RCMP expects that the right holder will be the primary body to monitor the marketplace and conduct most retail level investigations.

RCMP Intellectual Property Crime Strategy

The RCMP strives to:

• form viable working partnerships with IP rights holders and organizations, all law enforcement and customs agencies, and regulatory bodies at all levels of government;
• utilize focussed and effective enforcement techniques to dismantle the entire criminal organization involved in the illicit activities;
• develop and implement public awareness and education programs, targeting consumers, the private sector, and persons who engage in counterfeiting activities;
• develop and implement education programs for law enforcement, prosecutors and the judiciary;
• gather and share intelligence and information in a timely manner;
• work together with international law enforcement to attack the organized criminal groups that extend beyond Canada’s borders.

Intellectual Property Crime Responsibilitites

• RCMP: Criminal investigation of Copyright Act and trademark offences
• DOJ (Department of Justice): Prosecution of copyright offences
• Provincial Crown: Prosecution of Criminal Code offences
• CBSA (Canada Border Services Agency): Customs Act offences, plain view seizures, targeted seizures & court orders
• Police Force of Jurisdiction: Criminal Code offence investigation
• Industry Canada: Payment of the costs of copyright prosecutions
• Right Holder: Enforcement of private rights, assistance to law enforcement, and increasing public awareness

Complaint Assessment

Once a complaint is received, it will be reviewed and assessed by either the Officer in Charge or the Non-Commissioned Officer in Charge where the allegation was recorded.

The decision whether to initiate a criminal investigation will be based on the answers to the following:

1. Does this allegation fall within the RCMP mandate and established IP policy parameters for investigation? (This includes the Copyright Enforcement Guideline .)
2. Where does this allegation fit in relation to current operational priorities? (The RCMP uses a weighted system of criteria called “Priority Rating of Operational Files” (PROOF) to objectively prioritize files).
3. Has the right holder committed to assist throughout the entire investigation and prosecution?
4. Are there sufficient resources currently available in order to effectively investigate the allegation?
5. What is the reasonable expectation of a successful prosecution?
6. Will the Department of Justice or the Provincial Crown Attorney’s Office agree to prosecute the matter?

Where Charges Cannot be Laid

In cases where it is determined that charges cannot be laid, the RCMP may still initiate action to seize any counterfeit products that are considered a health and safety risk (regardless of quantity), fall within our IP crime policy, or have been detained at border crossings by the Canada Border Services Agency (as per available resources). In such cases, an attempt will be made to obtain a relinquishment of claim and/or a court order for the destruction of the offending goods. When feasible, it will also be attempted to recover transportation, storage and destruction costs from the offender.

Checklist for Reporting Copyright and Trademark Offences

Definitions of Counterfeiting and Counterfeit Product

For our purposes the term counterfeiting includes both trademark and copyright infringement.

For enforcement purposes a counterfeit product includes any type of property, data, information, digital file or goods including containers, packaging or labeling that has been produced, manufactured or otherwise created in violation of copyright or trademark law.

It includes any type of property featuring, bearing, embodying or incorporating a copyright or trademark without the permission or authority of the rights holder.

1. Complainant Contact Information

• Name:
• Business Name:
• Mailing Address:
• Business Address:
• Telephone Number:
• Fax Number:
• Cellular Telephone Number:
• E-mail Address:

2. Description of Infringed Property

• counterfeit product
  • Description of the counterfeit product which is subject to the illegal activity.
  • Is a sample of the counterfeit product available? Provided?
  • Is a digital image of the counterfeit product available? Provided?
• legitimate product
  
  • Description of the copyrighted material or trademark that is being infringed.
  • Is the copyright or trademark registered in Canada?
  • If so please provide the following: Registration Date, Registration Number
  • Do you have a copy of the registration certificate? If so, please attach a photocopy.
  • If the copyright or trademark has not been registered, do you plan on registering it?

3. Suspect Information

• Name of suspect and/or name of suspected business: Provide any information regarding the suspect and the suspected business that you may have, including: names, addresses, vehicles, E-mail addresses and websites, corporate or company documents
• How did the infringement activity come to your attention?
• Where are the location(s) of the infringement?
• Do you have an investigator’s report of this activity?
• If so, attach a copy of the report to your complaint with contact information of the investigator.
• Have you made sample purchases of the infringing property?
• If so, do you have an analysis report of the property? Copy of the analysis report provided?
• Has this suspect or suspected business been the subject of previous civil or criminal enforcement action?
• If so, when and by who?
• Attach information on any previous civil action including: dates, court, file numbers, attorneys, status of case.
• Attach copies of any previous cease and desist letters.

4. Nature of Activity

Describe the scope and nature of the counterfeiting activity, including:

• approximate suggested retail value of the property in question?
  Under $50,000
  Between $50,000 to $100,000
  Between $100,000 and $1,000,000
  Over $1,000,000
• estimated amount/quantity of the counterfeit product?
• manufacturing, importing, wholesaling or selling at the retail level?
• estimated time frame of the illegal activity?
• is the activity on a municipal, provincial, national or international level?
• do you suspect the involvement of organized crime or other types of criminal activity?

RCMP Intellectual Property Crime Coordinators

If you would like more information pertaining to the RCMP’s Intellectual Property crime enforcement program or would like to report an allegation for criminal investigation, please contact the IP crime coordinator who has been designated for your area.

Further information pertaining to the counterfeiting problem in Canada can be found at the website of the Canadian Anti-Counterfeiting Network, www.cacn.ca.