table of contents
1. Overview of the current status of Canadian legislation for the protection of geographical indications
(i) Pre-Comprehensive Economic and Trade Agreement (CETA) protection modalities
(2) The main content and features of the Comprehensive Economic and Trade Agreement (CETA).
2. Changes to Canada's Geographical Indication Protection under the Comprehensive Economic and Trade Agreement
III. Summary
1. Overview of the current status of Canadian legislation on the protection of geographical indications
Canada's legal provisions on the protection of geographical indications are mainly reflected in Canada's Trademark Act and the Comprehensive Economic and Trade Agreement (CETA). Canada provides for two types of geographical indication protection in the Trademark Act: the first is wine and spirits, which provides specific protection for wines and spirits, which is broadly consistent with Article 22.1 of the TRIPs Agreement, and the second is other products and services, which can be protected by registration of a certification mark.
(1) The protection model before the signing of the Comprehensive Economic and Trade Agreement (CETA).
The legal protection model of geographical indications can be divided into a strong protection model represented by the European Union and a weak protection model represented by the United States. As a country of immigrants, Canada has a short period of time since its founding and few local products, and has not yet formed a profound geographical and cultural environment, and the local products are more "modern products", which are not strongly related to geographical location and customs. Therefore, Canada, like the United States, does not emphasize the correlation between the product and the place of origin, weakens the protection of geographical indications, and advocates the use of ordinary trademark means for protection. [1]
Prior to the signing of the Comprehensive Economic and Trade Agreement, Canada, as a member of the Paris Convention, in order to meet the provisions of the TRIPs Agreement on geographical indications, mainly adopted the protection model based on the Trademark Act, which specifically stipulated the protection provisions for geographical indications for wines and spirits, while other products and services were protected by ordinary certification marks.
(2) The main content and features of the Comprehensive Economic and Trade Agreement (CETA).
After years of negotiations and the "Walloon Region of Belgium"[2], the EU and Canada signed the Comprehensive Economic and Trade Agreement (CETA) on 30 October 2016, which entered into force on 21 September 2017. For Canada, the signing of this agreement will help reduce its dependence on the United States, strengthen its ties with the European Union, and be a milestone in the protection of Canada's geographical indications. The Agreement answers three key questions about the protection of geographical indications: first, whether there is a need to expand the scope of protection for geographical indications at a high level; second, how to deal with the relationship between geographical indications and trademarks; Third, how to view the relationship between generic names and geographical indications. [3]
2. Changes to the protection of geographical indications in Canada under the Comprehensive Economic and Trade Agreement
First, customs protection measures for geographical indications should be strengthened. In terms of enhanced protection measures, first of all, the Comprehensive Economic and Trade Agreement (CTCTA) expands the scope of border security measures. According to the regulations, goods bearing a protected geographical indication are prohibited from being imported or exported if they do not originate in the territory of the designated geographical indication or if the goods are not produced in accordance with the laws and regulations of the region. Second, the Comprehensive Economic and Trade Agreement (CTA) expands Canada's Border Security Assistance Requirement to cover GIs, and customs officers will detain suspected counterfeit goods at the border if the rights holder has applied to participate in the assistance request process. After the goods have been detained, the GI responsible person can take further action in court against the suspected counterfeit goods, a process that previously only applied to the owner of the registered trademark.
Second, the criteria for the recognition of geographical indications should be raised. Article 20.16 of the Geographical Indications Chapter of the Comprehensive Economic and Trade Agreement (CTTA) clearly defines the concept of geographical indications. The definition not only emphasizes that the mark of an agricultural product or food must originate in the territory of a Member State or a specific area within its territory, but also that the specific qualities, reputation and other characteristics of the product must match the attributes of its geographical origin. [4] In paragraph 2 of Article 20.26, the Comprehensive Economic and Trade Agreement (CTA) explains the product categories and clarifies that they fall within the 22 categories listed in Annex 20-C[5]. Clause 20.17 further clarifies that this section applies to the geographical indications of the products listed in Annex 20-C. The product categories specified in Annex 20-C include, but are not limited to, 22 products such as fresh, frozen and processed meat, dry-cured meats, hops, etc.
Third, expand the scope of protection of geographical indications. Previously, the Trademark Act only provided protection for wines and spirits. Subparagraph 2(a) of Article 20.19 of the Comprehensive Economic and Trade Agreement (CTA) extends the protection of Canadian GIs from wine and spirits to food and beverages, extending the high level of GI protection to agricultural products and foodstuffs, including cheese, dry-cured meats and vinegar. Annex 20-A, Part A, lists 172 protected signs, including well-known signs such as Feta, Roquefort and Camembert de Normandie.
Applications for other geographical indications that are not included must be approved by the responsible Minister and then published. In addition, Korean geographical indications (GIs) under the Canada–Korea Economic Growth and Prosperity Act are also included.
The scope of protected geographical indications (GIs) is specified in detail under the Comprehensive Economic and Trade Agreement, not limited to agricultural and food products, and the types of products applicable are specified in the form of schedules. Although the scope of protection for geographical indications in the Comprehensive Economic and Trade Agreement is still limited compared to the TRIPS Agreement, and geographical indications for industrial and handicraft products are not protected under Canadian law,[6] the provisions of subparagraph 2(a) of Article 20.19 have made significant progress in the scope of protection of geographical indications in Canada, thus initially achieving the EU's negotiated goal of extending the high level of protection for wines and spirits to agricultural products and food.
Fourth, the EU would be allowed to recover geographical indications. The European Union and Canada have been working on the relationship between geographical indications and generic names. In 2003, Canada and the European Union agreed to trade in wines and spirits, which led to the removal of approximately 23 generic names under the Trademark Act. Unlike the trade reached in 2003, the provisions of the Comprehensive Economic and Trade Agreement mark the recovered generic names as asterisk products, and distinguish them into one-star, two-star and three-star products, and provide different measures of protection for products with different star ratings. [7]
Fifth, in order to better balance the rights of prior users, the EU agreed to protect the rights of prior users. The prior use protection of geographical indications in the provisions of the Comprehensive Economic and Trade Agreement (CTTA) distinguishes between star ratings. For one-star products, the prior user can continue to use the name in Canada as long as the name was used before the signing of the Comprehensive Economic and Trade Agreement; Two-star and three-star products need to be used for five or ten years before the signing of the Comprehensive Economic and Trade Agreement, and only those with prior use rights can continue to use them, and the Comprehensive Economic and Trade Agreement also makes exceptions for specific products. In addition, the agreement provides for a five-year transition period for producers who do not meet the above three fair use levels, during which the use of geographical indications will not be considered infringing. [8]
3. Summary
The signing of the Comprehensive Economic and Trade Agreement (CAI) ended a long-standing dispute between the European Union and Canada over geographical indications. The most famous case, such as the "Parma Ham Case", the Italian Prosciutto di Parma, will coexist with the "PARMA" brand currently held by Maple Leaf Canada, thus resolving a dispute that has lasted for more than 20 years. On September 14, 2020, the mainland and the European Union formally signed the Agreement on the Protection and Cooperation of Geographical Indications between the Government of the People's Republic of China and the European Union (hereinafter referred to as the "Agreement"). The agreement will provide a high level of protection for GIs on both sides, effectively deterring counterfeit GI products. The development process of geographical indication protection in Canada will help the mainland to further understand the new international trends in the protection of geographical indications, and the improvement of the geographical indication system in the mainland can learn from Canada's reform experience in the protection of geographical indications, and further explore the geographical indication protection system with Chinese characteristics in combination with its own national conditions.
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Annotations (scroll up and down to view)
【1】Carla S . Geographical indications under the WTO/ trips agreement: A critical assessment of the extension of the additional protection (article 23) beyond wines and spirits[J]. Perth International Law Journal,2019,141-153.
[2] On October 21, 2016, parliamentarians from the Walloon region voted in the Walloon Region of Belgium to reject the signing of the EU-Canada Comprehensive Economic and Trade Agreement (CETA), and the Walloon Region's resolute resistance put the future of the agreement in jeopardy.
[3] Yang Chonghui. Geographical indication rules of EU-Canada Comprehensive Economic and Trade Agreement and its enlightenment to China[D].Jinan University,2020.
[4] Zhao Xiaoping. Research on geographical indication clauses in the Comprehensive Economic and Trade Agreement between the European Union and Canada[J].Journal of Tianjin Normal University(Social Sciences),2018,(03):73-80.)
[5] The product categories in Annex 20-C specifically include: fresh, frozen and processed meats, dry-cured meats, hops, fresh, frozen and processed fish products, butter, cheese, fresh and processed vegetable products, fresh and processed fruits and nuts, flavoring and spices, cereals, milling industrial products, oilseeds, beverages derived from plants, oils and animal fats, baked goods such as pastries, pasta, fresh and processed olives, mustard, beer, vinegar, essential oils, There are a total of 22 types of products, including natural gums and resin-chewing gum
[6] Guo Ke. China Foreign Exchange,2016,(22):76-77.
[7] "Asterisk products" refer to products with "*" in the product category of Annex 20-C of the CETA Annex.
【8】Contreras H A. An Analysis of Fair Use and GIs in the Transition from NAFTA to USMCA[J]. MIPLC Master
【9】Thesis Series (2017/18), 2018.
Author: Sun Na Wang Yajie
编辑：Eleven