Canada: Changing The Trade Mark Law Landscape, One Geographical Indication At A Time: The Canadian-European Union Comprehensive And Economic Trade Agreement

Last Updated: March 24 2014
Article by Amrita V. Singh

The Canadian-European Union Comprehensive and Economic Trade Agreement

On October 18, 2013, Prime Minister Stephen Harper and European Commission President José Manuel Barroso signed the Comprehensive and Economic Trade Agreement ("CETA"), a reciprocal trade agreement intended to allow Canada and the European Union (EU) special entrance into the other's markets. This is of particular importance for Canada; 9.5% of our total external trade went to the EU in 2012, making it an important trading partner, second only to the U.S.

According to the European Trade Commission, the CETA will remove more than 99% of the existing tariffs between the economies, and is expected to increase trade by 23% (approximately $37.5 billion). While the CETA remains to be ratified, the Trade Commission expects that exports from the EU to Canada will increase by 24.3% (approximately $24.5 billion), and that Canada's exports will increase by 20.6% (approximately $12.4 billion).

Interestingly, the Trade Commission notes on its website that "[a]mongst the many benefits, the agreement will also improve the protection of intellectual property rights in Canada as well as the protection of the names of our flagship agricultural products." So how exactly will the CETA address intellectual property rights?

The Technical Summary of Final Negotiated Outcomes released by the Government of Canada provides the Coles Notes of the agreement-in-principle. Amongst other areas, it outlines the results of negotiations regarding intellectual property rights, specifically pharmaceutical protection, copyright, trade-marks and designs, geographical indications, plant and plant protection products, and enforcement of these rights.

Geographical Indications

Of particular interest are the ways in which geographical indications will be modified. Canada currently recognizes many geographical indications for EU wines (i.e. Champagne) and spirits (i.e. Cognac), but has now agreed to include 179 terms covering foods and beer. Although there will be "preserved space" for Canadian trade-mark holders and commonly used English and French names for food products, the agreement does mean that certain phrases will no longer be available to Canadian producers. For example, "Parmesan" would be available in English and French, but not in Italian ("Parmigiano-Reggiano").

Certain famous cheese names would also be unavailable. Already unhappy Canadian cheese makers, who fear the impact of the CETA on the domestic market (the EU will be able to sell an additional 16,000 tonnes of cheese to the Canadian public), will no longer be able to use "Mortadella Bologna" or "Brie de Meaux" – instead, they will have to use a component of a multi-part term ("brie" or "mortadella"). New cheese makers will not be permitted to use feta, Asiago, Gorgonzola, fontina, or Munster, without adding expressions such as "type", "imitation" or "kind".

Canadian producers will retain the right to use the customary name of an animal breed or plant variety on packaging (i.e. kalamata olives), and the government did create carve-outs: for instance, Canada will not protect GI "Budejovicke", ensuring there will be no conflict with the Budweiser trade-mark.

The economic impact of these changes to geographical indications remains to be seen, and although existing trade-mark holders and stakeholders were consulted, the far-reaching implications of the CETA on Canadian trade-mark rights will likely have unanticipated consequences.

Other Intellectual Property Impacts

In addition to the above-noted changes to geographical indications, the CETA addresses the following areas of intellectual property in the manner outlined below:

Counterfeit Goods – provisions for civil remedies and border enforcement in accordance with Canada's existing laws and proposed Combating Counterfeit Products Act.

Copyright – reflection of the Canadian system after implementation of the Copyright Modernization Act, which adopted the Copyright and Performances and Phonograms World Intellectual Property Organization treaties.

Trade-marks & Designs – reflects attempts to comply with international agreements and standards, particularly the Singapore Treaty on the Law of Trademarks, the Madrid protocol, and the Geneva Act of the Hague Agreement regarding international registration of industrial designs.

Patents – Canada to continue its current practice of providing eight years of market exclusivity for pharmaceutical data protection. It will also ensure pharmaceutical innovators have rights of appeal in PM(NOC) proceedings. Additionally, Canada is to extend protection for patented pharmaceuticals by two years, but Canadian-made generics may be exported during that time. There is no retroactive effect for this provision, and cost impacts will likely not be felt until 2023.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Amrita V. Singh
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