Joint report: Meeting of the Committee on Geographical Indications

September 14, 2023 (Ottawa / Videoconference)

The fifth meeting of the CETA Committee on Geographical Indications (GIs) took place on 14 September 2023 in Ottawa and via Videoconference. Canada and the EU engaged in an in-depth discussion of issues related to the CETA provisions on GIs for agricultural products and foods, as well as other issues related to GIs.

CETA related obligations

Enforcement

The EU reiterated the importance of effective administrative enforcement for GIs in Canada, and its concern with the outcome of GI-related labelling complaints that were submitted to the Canadian Food Inspection Agency (CFIA) and as raised at previous meetings. The EU reiterated its concern that the failure of CFIA to uphold any EU mislabelling complaints lodged to date would discourage other EU GI rights holders from filing such complaints with CFIA in the future. Canada noted that CFIA’s mandate regarding false and misleading labelling does not include the assessment of alleged infringement of GI rights, and that this was not required under the relevant obligation in CETA. In Canada, the enforcement of GIs as such is different than in the EU. Canada once again clarified that the CFIA process relates to labelling laws and the enforcement of GIs takes place under the intellectual property (IP) regime.

With respect to the CFIA process, CFIA inspectors undertake a whole of label assessment consistent with Canada’s labelling regime that has been in place even prior to CETA (and which was reflected in CETA) to determine whether a label is false, misleading, or creates an erroneous impression with respect to origin. The existence of a GI on a label is one factor that the CFIA will weigh in concert with all other elements on the label. In Canada’s view, the fact there has not been a positive finding of a misleading label by the CFIA, considering the sample size of complaints submitted since the 2017 provisional application of CETA, is not indicative that there is a problem with Canada’s labelling regime.

Canada once again clarified and emphasized that an assessment of whether there is GI infringement under Canada’s GI regime takes place through judicial enforcement under the IP system. Canada also recounted the positive recent developments in the Canadian marketplace where a number of EU GI right holders have successfully enforced their GIs through the IP system, which predominantly has been achieved using cease & desist letters and contacting producers who may not have been aware of the EU GI rights. Canada reiterated its longstanding availability to provide presentations and engage with EU stakeholders to clarify any elements of Canada’s GI regime to inform GI right holders how to make use of the system.

Grandfathered users

The EU once again emphasised the importance of its request for Canada to create a list of grandfathered users of certain names protected under CETA in the Canadian marketplace to bring legal certainty to those producers who are legally entitled to use grandfathered names. Canada repeated that there is no obligation in CETA to develop a list of grandfathered prior users and that it will not develop such a list. Nevertheless, following a commitment from the 2021 CETA Joint Committee to raise awareness among Canadian stakeholders of the CETA GI obligations, Canada reported that in the Autumn 2022, federal officials visited all regions of Canada to explain to Provincial authorities and business audiences the Canadian GI system, the existence of EU GI rights in Canada, and the CETA provisions regarding EU GIs, including on grandfathering. Canada also advised that Global Affairs Canada would promptly publish web content to inform stakeholders of the CETA GI obligations and enforcement in the Canadian market.^{Footnote 1} The EU welcomed both these initiatives and thanked Canada for having consulted it on the web content at a draft stage and also invited Canada to share any written documentation regarding the information sessions in Canadian Provinces.

Other Geographical Indications issues

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

• Canada updated the Committee about the recent publication by CIPO of EU GI names for opposition. The EU invited Canada to consider sharing aggregated statistics on EU GI applications which are still under examination by CIPO, without prejudice to CIPO practice as regards the confidentiality of the GI names themselves.
• On the GI View database, the EU offered Canada the opportunity to appoint officials from public bodies, such as Provincial and/or Federal ministries or agencies, to be trained by EUIPO on the enforcement module of the database. This would allow them subsequently to upload information on Canadian GIs into the database. In turn, the authorised officials could delegate certain access rights to private bodies, such as GI right holder representatives.
• Canada informed the Committee on its intention to review the extended information available in GI View regarding the GIs listed in CETA, with a view to determining the EU equivalent to the concept of “responsible authority” in the Canadian GI system.
• At Canada’s request, the EU provided an update on recent rulings of the EU Court of Justice relating to GIs.
  • On the case related to Danish dairy exports, the Court confirmed Denmark’s failure to adequately fulfil its obligations under the EU law on quality schemes for agricultural products and foodstuffs in relation to “feta”.
  • On the case related to certain products from Corsica, the Court confirmed that in assessing GI applications, the Commission was not bound to the decisions of the national authorities.
• The EU updated the Committee on the legislative process regarding the Commission proposal for a Regulation on European Union geographical indications for wine, spirit drinks and agricultural products, and quality schemes for agricultural products, as well as on the Regulation on geographical indication protection for craft and industrial products.
• The EU also updated Canada on its negotiations with Australia, New Zealand, Indonesia, and India, while Canada updated the EU on the progress of its negotiations with India and Indonesia.

Next steps

The EU informed the Committee about the preparation of an ex-post evaluation of CETA which should be finalised in 2025 and which will also cover GI enforcement, as well as the intention of the European Parliament to issue an own initiative report on CETA by spring 2024. Canada enquired whether the EU would include consultations with Canadian stakeholders as part of its evaluation.

Canada and the EU reaffirmed their shared commitment to continue to cooperate and to work together to achieve progress in a number of these areas.

Participants

European Union:

• Co-Chair: European Commission, Directorate General for Agriculture and Rural Development, Head of Unit 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 Intellectual Property Office
• Mission of Canada to the European Union