The Canadian-European Union Comprehensive and Economic Trade
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
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.
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
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
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
Copyright – reflection of the
Canadian system after implementation of the Copyright
Modernization Act, which adopted the Copyright and
Performances and Phonograms World Intellectual Property
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
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).