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Canada’s Treatment of Geographical Indications: Compliant or Defiant?

An Emerging Intellectual Property Paradigm features the works of reputed experts who highlight the special features of Canadian intellectual property law. Our Dianne Daley is the author of the section entitled Canada's Treatment of Geographical Indications: Compliant or Defiant? This work looks critically at Canada's implementation of its obligation to provide protection for geographical indications (GIs) to other Member countries under the Trade Related Aspects of Intellectual Property Rights Agreement of the World Trade Organization (WTO TRIPS Agreement).

The protection afforded to GIs under Canadian law, notably, treatment of the subject-area under Trade-Mark Law and at Common Law, is examined against the TRIPS obligations for compliance.

The writer briefly discusses the historical evolution of this form of protection and outlines the levels of protection required by the TRIPS Agreement in relation to GIs for wines and spirits and other products in providing a context for the analysis of Canada’s position. She argues that traditional forms of protection through common law and certification marks are inadequate for GIs which are more suited for their own sui generis protection given their nature and function as distinct from trade-marks.

The work examines some of the practical realities of the industry and trade in Canada which appear to have informed and influenced Canada’s implementation strategy. It contrasts Canada’s approach to implementation with that of other countries particularly those of the European Union and attempts to explain the reasons for some divergence. The Canadian approach while apparently addressing the TRIPS requirements does not appear to address the substantives issues which led to a mandate for international protection of GIs under TRIPS. However it is obvious that the approach has required a delicate balancing of interests critical to Canada’s own economic goals.

The writer discusses how Canada has had to weigh local interests against foreign interests in the treatment of GIs for wines and spirits which have become generic in Canada but are legally recognized and well known in their respective countries of origin. These GIs, many of which originate in EU countries, would not be recognized in Canada further to being listed in Canada’s Trade-Marks Act as being generic and hence not protectable. However after intense negotiations between Canada’s and the EU which resulted in the signing of the Canada-EU bilateral on the Protection of Wines and Spirits the majority of these so called generic GIs are being removed from the list. She discusses the effects and impact of the said Bilateral Agreement.

In highlighting the issues at the heart of the debate surrounding the implementation and review of certain aspects of GI protection under the TRIPS Agreement, the writer outlines where Canada stands in the divide. She concludes that while Canada is compliant with the commitments under the TRIPS Agreement, its minimalist approach to implementation and its overt opposition to the prospects of granting more protection to GIs than the Agreement currently demands shows its defiance to GI agenda being propelled by the EU in the WTO forum.

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