Canada signs first free trade agreement with an Asian nation

President Park Geun-Hye of South Korea and Prime Minister Steven Harper of Canada formally signed the Canada-South Korea Free Trade Agreement (CKFTA) on Monday, September 22 2014. The agreement is the first free trade agreement that Canada has signed with an Asian nation and was signed the same week as the final details of the Canada-European Union Comprehensive Economic Trade Agreement are expected to be released. The agreement is comprehensive and, in addition to dealing with tariff reduction, general rules are implemented to reduce trade barriers and provide for national treatment.

The agreement, once fully implemented, will eliminate virtually all tariffs on goods between Canada and South Korea. However, before implementation, the agreement must be endorsed by the Canadian parliament and some tariff reductions will be phased in.

There is a chapter dealing specifically with intellectual property that is quite broad, confirming existing obligations, for instance under the Agreement on Trade-Related Aspects of Intellectual Property Rights. In addition, there are specific provisions dealing with the primary areas of intellectual property (copyright, trademarks, patents), as well as provisions dealing with enforcement and geographic indications.

It appears that Canada will be in compliance with almost all IP obligations under the CKFTA without making amendments to its IP statutes other than amendments that are proposed in bills that have already been passed, or that have been introduced and are pending in Canada’s parliament. For instance, provisions dealing with enforcement requirements should be met by Canada’s existing regime as proposed to be amended by Bill C-8, the Combatting Counterfeit Products Act, which is currently awaiting third reading in parliament. Once passed, that bill will amend provisions of the Trademarks Act and Copyright Act dealing with border, civil and criminal remedies in a manner that should meet the CKFTA enforcement requirements. 

The one area where there may be a requirement for legislative change is in respect of protection of geographic indications. However, the requirements under the CKFTA are very narrow since they only deal with two Canadian geographic indications (Canadian whiskey and Canadian rye whiskey) and four South Korean geographical indications (Korean red ginseng, Korean white ginseng, Korean fresh ginseng and Icheon rice). 

It is expected that legislation ratifying the CKFTA will be introduced in Parliament very soon and hopefully reductions in tariffs and barriers to trade between the two countries will quickly follow.

Brian Isaac, Smart & Biggar/Fetherstonhaugh, Toronto