Canadian Lawyer InHouse

37 CANADIANLAWYERMAG.COM/INHOUSE MAY/JUNE 2018 two strains together, but that doesn't make it yours. If someone breeds another type of to- mato, they don't own that type of tomato ex- clusively. That's not how patents work when it comes to genetics," he says. Canopy has looked into plant breeders' rights and anticipates leveraging it in the fu- ture, but Shaer says it really is about having created a new strain. Shaer works closely with Thomas Shipley, Canopy's vice president, quality and assur- ance and regulatory affairs. "Where we're running into issues is on trademarks in the U.S." says Shaer. "Tweed is all about branding, so I get lots of reach- outs from marketing about filing patents. We get lots of reach-outs from all the juris- dictions and have to make decisions about what makes sense." Among the trademarks Shaer has filed in the U.S. is Tweed's "Hi." trademark. It ap- pears on goods such as T-shirts the company sells online and at the store in Tweed. "We have trademarked that, but in the U.S., we're having a fight with someone who has filed a similar one. The reality is both are related to cannabis, so our filing is for apparel. It's innocuous, but the USPTO [United States Patent and Trademark Office] — certain trademark agents — will say 'That is not re- ally what you sell.'" The goal is to protect assets he believes are valuable to the company. "Branding and marketing has always been a big part of our makeup." Sister company Canopy Health Innova- tions has filed more than 20 patents already this year related to medical indications. "Is there value in having certain things patented because we want to block people as the market is in its infancy? If we can slow other people down in a legitimate way that's not a terrible thing," he says. EMPLOYMENT ISSUES Cannabis is also on the minds of other in- house counsel in terms of what it will mean when recreational product becomes legal later this year. Robert Soccio, general coun- sel, corporate secretary, compliance officer and director of human resources for Navistar Canada, says the commercial truck manufac- turer is treating it the same as how alcohol or drugs would be treated in the workplace. "It's not allowed onsite or in the office or distribution centres or factories. There is also the medical marijuana aspect and that provides an interesting wrinkle, but if prescribed by a doctor, then we have to be advised about it especially in a factory or warehouse environment where if there is any impairment by somebody's judgment or change to the ability to operate heavy equip- ment or health and safety concerns — that will be the challenge. I think you manage it like any other situation where someone has a prescription or disability they need to ac- commodate according to law," he says. Soccio says any misconception that recre- ational cannabis can be brought to the office is something companies are going to have to communicate well to employees just like drugs and alcohol. "There will be a definite need to communicate the specific policies," he says, adding it will be incumbent on com- pliance groups to make sure the new law is well understood by the executive and man- agement team, and policies will have to be updated and communicated clearly to em- ployees to address the new law. Bill 148, the Fair Workplaces, Better Jobs Act is also causing challenges for employers as they come to understand the full weight of the new legislation. "There is some confusion around how the emergency leave interconnects with the oth- er leaves such as critical illness, family leave and bereavement leave. I think there will be confusion over how this practically plays out between companies and the unions," Soc- cio says. "That's something we will have to manage as we go along." While the increases in leaves available — emergency, critical illness, parental — will be an initial challenge for some or- ganizations, many federally regulated insti- tutions offer those as best practices already. Robert Piasentin, general counsel at Si- erra Systems in Vancouver, says he has been focused on many of the changes in Ontario, especially with the new mandatory leave requirements, for personal emergency, for example, as "they have the potential to be extremely expensive," he says. "It has been taking a fair amount of time as we analyze what the requirements mean and how they might impact us from produc- tivity, profitability and utilizaiton perspec- tives," he says. Other changes that impact organiza- tions in terms of "equal pay for equal work" — which applies to part-time and seasonal workers such as public golf course staff and parks maintenance personnel — has some wondering how they will pay for it all. "I think the changes will impact munici- palities in much the same way they will impact private sector businesses," says Mary Ellen I would rather file a good patent I have more confidence will hold up than a bunch that will die on the vine in the application phase just because they are obvious or when the entire industry has matured five to 10 years down the road and there is the odd patent war. I've lived that on the tech side before. PHIL SHAER, CANOPY GROWTH PHOTO: COLIN ROWE

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