Canada's massive overhaul of trademark law still not consistent with the TPP

| February 17, 2016
Photo: flickr/ Steve Snodgrass

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Problems? Oh, the Trans-Pacific Partnership has a few! Read about them all in the new series The Trouble with the TPP.

The Trouble with the TPP continues with another area of intellectual property that is subject to an overhaul due to largely to the trade agreement: trademark law. The Canadian government's summary on the issue once again understates the significance of the changes with assurances that the TPP is "in line with Canada's existing regime" and "supports Canada's progress to accede to the Madrid Protocol and Nice Agreement."

The reality is that government recently passed a massive overhaul of trademark law with little consultation or debate in anticipation of the TPP requirements. In fact, government negotiators opposed some of the trademark requirements in the TPP until very late in the negotiations (including some of the Nice Agreement provisions) recognizing that it was not consistent with Canadian law at the time. The planned Canadian changes are not expected to come into force until 2018 at the earliest.

Yet even when they do, trademark experts believe that Canadian law will still not be consistent with the TPP.  For example, Article 18.19 of the TPP requires that trademarks include collective marks and certification marks (certification marks need not be a separate category provided that they are protected). Neither current Canadian law nor the recent reforms address the issue, so further reforms will be needed.

Moreover, there are concerns that Canadian protection for well-known marks does not meet TPP requirements, leading to further TPP-mandated amendments. The requirements have been summarized as follows:

"TPP does appear to require the attention of Parliament in respect of well-known trademarks, country names, geographical indications and collective marks. It is imperative that Parliament allow for timely and open consultation on any prospective legislative change. CIPO must also allow for adequate consultation on any administrative changes it is charged with making."

With Canada already having embarked on a huge overhaul of trademark law just prior to the conclusion of the TPP that will take years to implement, it would seem that even more changes are on the horizon.

This piece originally appeared on Michael Geist's blog and is reprinted with permission.

Photo: flickr/ Steve Snodgrass

 

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