Text of CETA released

The text of the Comprehensive Economic and Trade Agreement (CETA) between Canada and Europe was released on September 26 2014. The release follows the conclusion of an agreement in principle on October 18 2013 and an announcement on August 5 2014 that the text had been finalised.

Chapter 22 addresses intellectual property and provides that its objectives are to:

• facilitate the production and commercialisation of innovative and creative products, and the provision of services, between the parties; and
• achieve an adequate and effective level of protection and enforcement of IP rights.

This update will focus on trademarks, geographical indications, enforcement and border measures.

With regard to trademarks, the final text indicates that the parties will make all reasonable efforts to comply with the Singapore Treaty on the Law of Trademarks and accede to the Madrid Protocol. Canada has already taken steps to comply with this provision through the passage of Bill C-31, which includes the necessary amendments to the Trademarks Act in order to move forward with these agreements.

The additional provisions relating to trademarks are straightforward and already within the scope of Canadian law. Each party must provide a system for registering trademarks, with a system to appeal refusals to register and to oppose applications and registrations. In addition, each party must provide an electronic database of pending and registered marks. Provision must be made for the fair use of descriptive terms, including terms descriptive of geographical origin, as a limited exception to the rights conferred by a registration.

A geographical indication identifies an agricultural product or foodstuff as originating in the territory, region or locality of one of the parties to the agreement in circumstances where the quality, reputation or other characteristic of the product is essentially attributable to its geographical origin. Examples of geographical indications that are protected by the agreement include ‘Roquefort’ for cheese and ‘Ricciarelli di Siena’ for confectionery and baked products. The provisions of the agreement relating to geographical indications are extensive.

Canada is likely to be CETA compliant in respect of commitments regarding IP enforcement without any legislative changes. However, with respect to border measures, Canada's laws must be updated in order to be CETA compliant. That said, the pending Combatting Counterfeit Products Act will amend Canada's laws such that they should be compliant, except with respect to requirements for border measures in respect of geographical indications. Additional legislative changes may be required in order to deal with that aspect of border measure obligations under CETA. The Combating Counterfeit Products Act is currently before the Senate and is expected to be passed during this parliamentary session.

As indicated in the disclaimer that accompanies the text, CETA is presented for information purposes and is subject to legal review. Following legal review and formatting, the complete text will become binding upon completion of the ratification process by both Canada and the European Union. The parties have committed to full support of its early ratification.

The long process of statutory and regulatory reform is unlikely to begin until the agreement is ratified. It may therefore be a number of years before specific changes to Canadian law are implemented.

Keltie Sim Luft, Brian P Isaac, Daphne C Lainson and David E Schwartz, Smart & Biggar/Fetherstonhaugh, Toronto and Ottawa