Download the Request for Assistance Form (RFA) at:
Eligibility: Owners of Canadian trademarks and copyrights are eligible to apply for an RFA. However, the Act requires that trademarks be registered with the Canadian Intellectual Property Office (CIPO), and recommends that copyrights be registered. The RFA Program will apply to goods/packaging/labels bearing a trademark that is identical to or that cannot be distinguished in its essential elements from the registered trademark.
Process: Both the application form for an RFA and a guidance document setting out the application process are available from the CBSA website.2 According to these CBSA documents, at the present time, there is no registration fee to apply for an RFA (although this could change in the future). The CBSA also states that it will take between four to six weeks to process an RFA application. The CBSA will notify the rights holder once an RFA is approved, which will be valid for two years and may be renewed for successive two-year periods upon request.
Detainment: Once an RFA has been approved, the CBSA will monitor, intercept and detain any suspected counterfeit goods. Rights owners will be notified of the detention and will be provided with a sample of the detained goods along with information relating to the detained goods (such as a description or details relating to the owner, importer or exporter of the goods). It is worth noting that the Act now clarifies that both copyright and trademark rights holders can use this information obtained from the CBSA about suspected shipments in seeking out-of-court settlements.
Rights owners will then be given the opportunity to take appropriate action within 10 working days (five for perishable goods) after the day on which the notice was sent out. Rights owners will also have the option to request an additional 10 days for non-perishable goods only, but whether a request is met is at the discretion of the customs officer having regard to the circumstances surrounding the detention.
In order for the goods to be detained beyond the initial 10-day period, the rights holder must submit documentation evidencing the commencement of court proceedings related to the detained goods to the CBSA before the end of the 10-day period. The goods will then continue to be detained until: (i) the proceedings either end, are settled or become abandoned; (ii) a court directs that the goods are no longer to be detained; or (iii) the trade-mark owner consents to the goods no longer being detained.
Liability: Once an RFA is approved, rights owners will be required to accept any liability for the CBSA’s costs associated with the storage, handling and if applicable, destruction of detained goods, commencing the day after the notice of detention is issued. Further, rights owners are also liable for damages to the owner, importer or exporter of the detained good should any of these parties suffer losses, costs or prejudice as a result of the detention if the proceedings are dismissed or discontinued.
It should also be noted that while the Act states that a 10-day renewal as described above may be made more than once, the rights holder may be required by the CBSA to furnish security to cover the potential liability for the storage, handling and possible destruction of the detained goods.