motor equipment manufacturers association brand protection council meeting december 12 th, 2007 cpl....

Motor Equipment Manufacturers AssociationBrand Protection Council Meeting

December 12th, 2007

Cpl. Lance HymersGTA Federal Enforcement Section

Toronto West Detachment

Introduction to the RCMP, its IP Crime Mandate & Policies

Royal Canadian Mounted Police

Gendarmerie royaledu Canada

Introduction to the RCMPIntroduction to the RCMP

•Everyone knows we wear funny hats and ride horses

• What, exactly, is the RCMP?

•Are we the “Canadian FBI”?



Introduction to the RCMP



A brief history of the RCMPA brief history of the RCMP

The RCMP was formed in May 23, 1873 as the Northwest Mounted Police

We were sent west in advance of the settlers to establish a framework of law and order, and end the reign of the whiskey traders

This is why Canadian “Old West” History is so boring




We have liaison officers in over 30 countries

We have officers conducting peacekeeping tours and training police officers in places such as Afghanistan, Haiti, East Timor, Guatemala, Syria (for Iraq)

The RCMP has a fleet of 40 aircraft and large numbers of boats, including high speed patrol boats, and over 8000 cars




• We are Canada’s Federal Police

• 24,500 employees (regular members, civilian members and public service employees).

• In some provinces, we are the uniformed police of jurisdiction

• Our members do the work of the FBI, DEA, ATF, Secret Service, US Marshalls, some ICE functions, and the Department of Homeland Security.



Yes, sometimes we ride horsesYes, sometimes we ride horses




RCMP Operational DivisionsRCMP Operational Divisions




In Ontario & Quebec we enforce Federal statutes only

Our main programs are:

• Customs and Excise (C&E)

• Commercial Crime (CCS)

• Immigration and Passport (I&P)

• National Security (INSET)

• Drugs

• Federal Enforcement (FES)



Federal Enforcement SectionFederal Enforcement Section

• Enforce 283 Federal Statutes

• Provides assistance to other RCMP Detachments for work in GTA

• Provides assistance to Interpol, other police agencies

• Provides VIP protection as needed for visiting dignitaries & events

• Enforce the Copyright Act and the Trademark Act

(using sections of the Criminal Code)



GTA Federal Enforcement Sections

Toronto North Detachment (Newmarket)16 RCMP Members Services Eastern Half of GTA (currently reassigned to a priority investigation)

Toronto West Detachment (Milton)16 RCMP MembersServices Western Half of GTA

The GTA had a population of 5,555,912 at the 2006 Census. With 16 RCMP officers doing IP crime, that works out to 347,244.5 persons per investigator.



IP Investigations & ChargesIP Investigations & Charges

2000 391 investigations811 Charges laid

2001 356 investigations291 charges laid

2002 364 investigations1537 Charges laid

2003 305 investigations202 charges laid

2004409 Investigations253 Charges Laid

The FBI in the United States has a yearly average of 500 to 600 IP investigations


Gendarmerie royaledu CanadaRCMP IP Crime Policies



Investigational PrioritiesInvestigational Priorities

1. Counterfeit products which constitute a health and safety risk to the consumer.

2. Investigations which involve links to organized crime or terrorist groups.

3. Large scale investigations which deal with importation, manufacturing or distribution.

4. Investigations which have links to other ongoing matters or repeat offenders.

5. Smaller scale investigations which will help gather intelligence or target upwards.



Proving Knowledge – The same defences are always utilized “I did not know it was counterfeit” or “that was not what I ordered”.

* THIS is the biggest reason why we may seize the product but lay no charges

Ownership rights – The defence will try to bring reasonable doubt into the existence of copyright and trade mark ownership or make it appear that there was permission granted to the defendant for use of marks.

There are two main areas where a defence counsel will attack during a copyright or trade mark case

Problems…Problems…



Where Charges are not LaidWhere Charges are not Laid

In cases where charges cannot be laid we will still attempt seizure action:

• For counterfeit goods that are considered a health and safety risk (regardless of quantity)

• For counterfeit goods that have been held at border crossings (Where resources are available)

• In these cases we will attempt to obtain a relinquishment of claim and/or a court order for destruction

• We will also attempt to recover transportation, storage and destruction costs from the offender where feasible



Assistance – Rights HoldersAssistance – Rights Holders

• Register copyrights and trade marks in Canada

• Provide expert analysis of offending property

• Provide witness testimony at all court proceedings

• Provide an impact statement for court regarding affects of IP crime

• Provide service of “Cease and Desist” letters on offenders

• Provide intelligence on offenders and maintain a data base of previous dealings

• Provide funds to assist with transportation, storage and destruction costs as necessary at the conclusion of our investigations

• Provide training for law enforcement in the identification of counterfeit goods



Assistance – Rights HoldersAssistance – Rights Holders

• Conduct preliminary enquiries on the offenders

• Test purchases where possible

• Statements and reports of investigators

• Provide copyright and trade mark information and registration documents on offending product

• Provide expert legal advice where necessary for court proceedings and provide case law for previous copyright and trade mark cases

• Provide genuine product for court proceedings for comparison purposes if necessary



Rights Holder InvestigationsRights Holder Investigations

• In certain situations rights holders may wish to conduct their own comprehensive investigations and eventually pass the information on to us for criminal proceedings

• In these situations were it is feasible we ask that you notify us in case we have ongoing investigations against the same targets

• In most situations this will assist us by enhancing our criminal investigations

• In these cases we will corroborate information supplied before proceeding with a search warrant or the laying of criminal charges



Complaint AssessmentComplaint Assessment

• Does it fall within the RCMP mandate and established IP policy parameters for investigation?

• Where does it fall in regard to current operational priorities?

• Have we received a commitment from the rights holder to assist with the investigation and prosecution?

• Will either the DOJ or provincial crown undertake to prosecute the matter?

Complaints are reviewed by the O i/c GTA FES



Reporting IP CrimeReporting IP Crime

• The complaint should be as complete as possible and in Chronological order with all relevant documents, reports & notes attached

• Provide as much information on the suspect and the illegal activity as possible – saves RCMP investigators time

• Try to have 1 point of contact between the RCMP and yourselves – avoids miscommunication

Important points when reporting IP crime complaints to the RCMP



Proper Communication is Essential for Success



Reporting IP Crime Form



Presentation HighlightsPresentation HighlightsReporting IP Crime Form



Operational PlanningOperational Planning

• Have the mind set that all investigations will go to the RCMP

• Everything you do must be documented - no exceptions

• Everything you send to the RCMP could be subject to disclosure to the accused should the matter end up in Canadian Criminal Court

• Your investigation should be documented in such a way that if were hit by a bus, the file could be turned over to the next guy and he could carry on without an interruption.

Preliminary Rules



Presentation HighlightsPresentation HighlightsNo matter how great your technique is there is always room for improvement



The Grey MarketThe Grey Market

Is the product in question counterfeit? Could the product be from a diverted or grey market source? If it is not counterfeit the police will not deal with it under copyright or trade mark laws.



Product AnalysisProduct Analysis

• The analysis must establish the authenticity of the mark

• The analysis must explain why the mark is counterfeit

• The analysis must explain in simple to understand terms why the product is hazardous (if it is)

• The analyst must keep excellent notes and records about the whole analysis procedure from cradle to grave

Proper product analysis is essential to ensure a successful investigation and prosecution



Product AnalysisProduct Analysis

• Initial analysis for the officer can be quick and dirty

• Official analysis for court must be detailed and well documented

• Although the analyst may be an engineer and a technical genius the analysis must written in plain English

• The end audience for the analysis is a Judge and jury who may know nothing about technical electrical terms etc.

• The analyst should keep excellent notes and records because a trial may not occur for many years. All actions and comments are subject to extreme scrutiny by the defence



Presentation HighlightsPresentation Highlights

Sample Analysis Reports



Presentation HighlightsPresentation HighlightsSample Analysis Report



Presentation HighlightsPresentation HighlightsInclude notes and photographs of the product and sealed packaging as you received them – provides evidence the exhibits were not tampered with



Presentation HighlightsPresentation HighlightsInclude photographs of the counterfeit mark and provide easily understood comments relating to the mark – date on photographs can be helpful – ensure it is correct



Presentation HighlightsPresentation HighlightsInclude items in the analysis which a Judge and jury can easily understand



Presentation HighlightsPresentation HighlightsInclude narrated video and good photographs of testing and results – a burning cord can impress a Judge and jury and is something they can easily understand - it is dangerous




COMMENTS

• Package received from RCMP Cpl. Warren MacInnis May 25, 2006 at 10:35 hrs in sealed Exhibit envelope # 107264B via FED Ex BOX #25436.

Photographs should be included in all analysis reports with associated comments next to them




COMMENTS

• The envelope was opened by me at 10:40 hrs and found to contain an orange 50’ extension cord wrapped in yellow cardboard packaging. I photographed the cord and packaging.





COMMENTS

• I plugged the Extension cord into a hair dryer for 9 minutes before it caught on fire. The extension cord was placed on a piece of cloth which is standard industry testing practices. Digital video was taken of this test including my narrative and provided in CD format to the RCMP.


Existing UL Analysis Report



Presentation HighlightsPresentation HighlightsIf possible and if appropriate try to use photographs of legitimate product next to the counterfeit version in reports



Presentation HighlightsPresentation HighlightsIts nice to include close up photos of the tested product – it can make an impact on the court

motor equipment manufacturers association brand protection council meeting december 12 th, 2007 cpl....

Documents

rcmp officers

rcmp detachments

iraqthe rcmp

rcmpthe rcmp

ip investigations charges2000

large scale investigations

smaller scale investigations

training police officers