Meeting of the CETA Committee on Geographical Indications

22 October 2020 (by videoconference)

Report

The third meeting of the Committee on Geographical Indications (GIs) established under CETA took place on 22 October 2020 by video conference. Canada and the EU engaged in in-depth discussion of issues related to the CETA provisions on GI protection for agricultural products and foods, as well other issues related to GIs.

At the EU’s request, Canada provided an overview of its regime for the enforcement of protection of GIs. Canada clarified that one avenue EU GI stakeholders can pursue is to submit complaints in respect of labels that bear GIs in a false and misleading manner to the Canadian Food Inspection Agency (CFIA), which is responsible for assessing and taking appropriate action in cases where food products do not comply with the relevant Canadian labelling requirements. Canada presented the approach used by CFIA for assessment of labelling complaints related to the origin of the food, in respect of which each case is treated on its own merits. The following website provides information on how the overall impression of a label is taken into account: https://www.inspection.gc.ca/food-label-requirements/labelling/industry/general-principles/eng/1392324632253/1392324755688?chap=0#c2. Canada highlighted how EU GI rights holders could make effective use of this enforcement measure. EU asked for clarification on a number of aspects of the CFIA complaint mechanism and indicated that it will invite its rights-holders to lodge official complaints to test the system as suggested by Canada. The EU will monitor the outcome of these complaints.

Canada noted that the complaints mechanism under the Canadian labelling framework available to EU stakeholders, is complementary to the intellectual property (IP) framework. Canada reminded the EU that the determination of infringement of GI rights is made under the Canadian judicial system, as GIs, like other IP rights, are private rights in Canada. Canada stated that it is within the context of the private rights based IP framework that EU GI right holders are afforded the highest level of protection. However, to take advantage of this, EU GI right holders need to assert their GI rights in the Canadian marketplace. Canada noted that in the IP context, one strategy is the ability of right holders to contact producers or businesses that make use of their terms. Canada indicated that this is the first and most common method of IP enforcement in Canada, and that the GI regime under the Trademarks Act underpins any communication with a producer that makes use of a protected GI. Canada explained that, in their experience, entities are often willing to discontinue use of a term voluntarily when informed of the existence of IP rights that they may be infringing. The EU indicated that it will encourage its rights-holders to use this method.

It also reiterated the importance of effective administrative enforcement of GI protection and that it will continue to monitor closely the process for GI rights enforcement in Canada.

The EU again raised its request for movement from Canada to create a list of grandfathered users of certain names protected under CETA in the Canadian marketplace. Canada repeated that there is no obligation in CETA to develop a list of grandfathered prior users.

Canada offered to, once again, engage directly with EU rights holders, to inform them of how to access the tools available under the Canadian system of enforcement.

The EU raised the situation regarding corrigenda in respect of certain EU GIs listed in Annex 20-A of CETA. For “Prosciutto di San Daniele”, “Aceite del Baix Ebre-Montsià” / “Oli del Baix Ebre-Montsià” and the product category of “Garda”, the EU explained that CETA contained merely clerical errors that must be rectified. Canada committed to providing a response in the near future for those three products. On “Jabugo”, Canada indicated that this was a new name and a request should be made for protection through the open registration system.

Canada shared a presentation regarding best practices when requesting GI protection with the Canadian Intellectual Property Office (CIPO) and encouraged EU to use the open registration system in Canada. Both sides welcomed the fact that 13 EU GIs had been registered via the open system since CETA.

Other GI related issues were discussed, that were not directly related to the obligations of CETA:

• The EU provided Canada with an update of its ongoing negotiations with Australia and the UK, and the potential implications for EU GI protection. Australia has proposed a new legislative framework for GI protection. Regarding Brexit, protection of third country GIs registered in the EU, through direct application, will continue in the UK after the end of the transition period in 1 Jan 2021. Protection negotiated through a bilateral agreement will no longer apply.
• The EU updated the meeting on the GI webinars it was hosting across Canada, in an effort to share guidance on its GI regime with Canadian stakeholders, to exchange information and learn from one another’s experiences.
• At Canada’s request, the EU provided information on the continuing infringement proceedings related to Danish GI exports.
• Canada also inquired about progress regarding the development of the EU GI database GIview. EU indicated that the launch of the database was scheduled for the end of the year. The database will at first include information from EU GI registries and GI agreements with third countries. From then, Member States will be actively involved in keeping the database populated with additional data. Responsible authorities will be able to upload relevant data, which will henceforth be within Member State competence. Canada indicated that such additional information, notably on the representatives of the GIs protected under CETA, would facilitate border enforcement in Canada.
• EU updated Canada on the ongoing evaluation study of EU Quality Schemes, which will be finalised early in 2021 and which will feed into a review of EU GI schemes.
• At Canada’s request, EU gave a presentation on the EU’s experience in protecting and monitoring enforcement of its GI logos (PDO, PGI, and TSG logos) in third country markets, which included registration of GI as trademarks. This is monitored also by Trademark Watch, which is a tool set up by the EU’s Joint Research Council (JRC)

Canada and the EU concluded that it would be helpful to continue discussions in the near future and reiterated their shared commitment to continue to cooperate and work together to achieve progress in a number of areas.

Participants:

European Union:

Co-Chair: European Commission, Directorate General for Agriculture and Rural Development, Head of Unit A3 (The Americas)
European Commission, Directorate General for Agriculture and Rural Development
European Commission, Directorate General for Trade
Delegation of the European Union to Canada

Canada:

Co-Chair: Global Affairs Canada, Director, Intellectual Property Trade Policy Division
Global Affairs Canada
Innovation, Science and Economic Development Canada
Agriculture and Agri-Food Canada
Canadian Food Inspection Agency
Canadian Intellectual Property Office
Mission of Canada to the European Union