The Tag by monica renata (CC BY 2.0)

The Tag by monica renata (CC BY 2.0)


The Trouble With the TPP, Day 30: Losing Our Way on Geographical Indications

Geographical indications (GI) are signs used on goods – frequently food, wine, or spirits – that have a specific geographical origin and are said to possess qualities, reputation or characteristics that are essentially attributable to that place of origin. Given the quality associated with the product, proponents of GI protection argue that it is needed to avoid consumer confusion as well as to protect legitimate producers.

Europe has the most extensive geographical indication protections in the world. These include Protected Designation of Origin (PDO), which covers agricultural products produced, processed and prepared in a given geographical area using recognized know-how; Protected Geographical Indication (PGI), which covers agricultural products linked to the geographical area; and Traditional Speciality Guaranteed (TSG), which highlights traditional character, either in the composition or means of production. 

The net effect of the European system is that hundreds of items enjoy special legal protection.

What does this have to do with the TPP?

As part of the Canada – EU Trade Agreement, Canada agreed to expand protection for nearly 150 European geographical indications. However, CETA has still not been signed due to controversy over the investor-state dispute resolution provisions in the agreement, which have attracted significant European opposition. Canada and the EU are working on a compromise, but the failure to sign CETA before TPP raises the possibility of problems with the Canadian provisions on geographical indications. Moreover, several side letters indicate that at best a confusing, patchwork approach has been created.

Section E of the TPP’s intellectual property chapter establishes the legal protections for geographical indications. The U.S. is opposed to GI protection (it argues that trademarks can achieve the same thing) and wanted to use the TPP to help block European demands for GI protection. The section therefore creates several types of GI protection: protections for new GIs (very stringent requirements including the possibility of cancellation), protections for existing GIs (which are effectively grandfathered), and protections for new GIs due to existing international agreements, for which a couple of procedures are identified.

The most relevant provision for Canada involves the procedure for existing international agreements. Canadian negotiators clearly wanted to include CETA within the scope of the provision even though the deal is not concluded. Canada therefore likely inserted the following footnote:

For the purpose of this Article, an agreement “agreed in principle” means an agreement involving another government, government entity or international organisation in respect of which a political understanding has been reached and the negotiated outcomes of the agreement have been publically announced.

That sounds like CETA and reports indicate that Canadian officials believe this covers it. That would place the new European GIs under the procedures for existing international agreements. Article 18.36(2) states:

In respect of international agreements referred to in paragraph 6 that permit the protection or recognition of a new geographical indication, a Party shall

(a) apply paragraph 1(b) [which involves Internet postings of details on potential new GIs] ;
(b) provide an opportunity for interested persons to comment regarding the protection or recognition of the new geographical indication for a reasonable period of time before such a term is protected or recognised; and
(c) inform the other Parties of the opportunity to comment, no later than the commencement of the period for comment.

These provisions are designed to provide greater transparency with GIs, but does not include a clear opposition mechanism. However, there is another footnote that is creating some confusion:

In respect of an international agreement referred to in paragraph 6 that has geographical indications that have been identified, but have not yet received protection or recognition in the territory of the Party that is a party to that agreement, that Party may fulfil the obligations of paragraph 2 by complying with the obligations of paragraph 1.

The obligations of paragraph 1 include the possibility of opposition and cancellation of a GI. Some reports have speculated that Canada might have to follow this latter approach, though the word “may” suggests that either option is valid.

If that was not sufficiently complex, Canada also signed four side letters on GIs. The letters with Peru and Chile simply confirm that existing GI approach found in the Peru and Chile free trade agreements with Canada. The letter with Japan confirms the existence of GIs protected in each country and opens the door to new ones in the future. Most notably, the letter with Mexico identifies three Mexican GIs that are eligible for protection, but Canada reserves the right to use the TPP’s cancellation provisions. This letter may explain the confusing footnote that allows for two different compliance approaches.

By now, the legal complexity of this provision means that most readers will have stopped reading. Yet the Trouble with the TPP is that a trade agreement that is supposed to make things easier for business actually succeeds in making it more difficult. These rules will have a real-world impact on Canada and Canadian businesses, which will be left to grapple with numerous different legal approaches and commitments to GIs arising from domestic rules, the various trade agreements, and side letters with one-third of TPP members.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty)


  1. The sheer scale of TPP negatives and complexities make me ask: what exactly was wrong with putting the same level of US overbearing pressures into completing the Doha round – apart of course from the transparently political intent re China of the TPP and TTIP duo. However the sheer escalating complexities that are now emergent daily from the forensic analysis only possible once the text was released does suggest that this essentially secretly US-business drafted text just might not be in the best interests of a significant number of parties to the agreement just signed.

    One can dream of a collective decision suspend ratification and a joint decision to devote real energy to a revived Doha round (no ISDS) with what has been learned, addressing the new ICt/IP world created since TRIPS…

    Clearly I am deranged to think that such a positive Trade agreement outcome in the interests of all could ever be even considered by the major players..

    I await Prof Geist’s next litany in his series of un-worked out complexities.. I fear that this popular series will run for a record breaking time…

  2. TPP is an attack on the working class and a bad deal for all but multinational companies it destroys the rights of local governments to control their environmental laws and forces wages down.

  3. Robert Billyard says:

    Open letter to Minister of Trade Chrystia Freeland
    On the TPP
    The Honorable Chrystia Freeland
    Minister of Trade
    House of Commons, Ottawa Ontario
    February 19th, 2016

    Dear Ms. Freeland:
    I find it necessary to write you as we are once again facing passage of another trade deal in a time when too many have been stampeded into existence without proper scrutiny and without regard for their consequences.
    After all these years the devastating social and economic consequences of existing deals are manifest and well documented yet governments repeatedly refuse to address them. Their only response is to acquiesce to more deals.
    Going back to the time of the Brian Mulroney’s FTA these have been presented to the public as “free trade” agreements. In fact this is a parody of their real intention. A cursory review of them reveals they are about much more.
    The TPP is presented as a “partnership.” Here again this is a disingenuous term. A partnership implies all participants are roughly equal in standing. With the TPP, the world’s largest economy is really conscripting much smaller satellite economies under its dominance. It follows the major benefits of any such agreement will accrue to the dominant partner.
    The actual origins of the TPP have less to do with free trade and more to do with trade wars. The TPP was born out of America’s “Asian Pivot” and the 2011 manifesto America’s Pacific Century (APC). The APC is a strategic plan for military and economic and military dominance of the Pacific and China is the target. Tensions between these two powers are rising.
    The TTP might more accurately be described as a conscription of smaller economies as ”foot soldiers” in America’s trade war with China; just as NATO countries are conscripted into its military wars in the Middle East and beyond. Foot soldiers in any type of warfare are among the first casualties.
    The TPP is made in America to serve American transnational corporations. It is an economic instrument to advance US global hegemony. It certainly will not serve the American people. The history of the US in the past few decades has seen the public good enslaved to corporatism. The rapacious ascendance of neoliberalism and agreements like the NAFTA have devastated the fabric of American society.
    It is noteworthy three of America’s most prominent economists; Michael Hudson, Joseph Stiglitz and Robert Reich have come out strongly against the TPP. Their advice is compelling.
    For Canada this is one deal too many. Over the last forty years we have seen an incremental loss of our sovereignty. Successive governments had been led blindly into too many deals. The time has come where real leadership must prevail and the integrity of consultations is irrefutable.
    Canada must be so bold as to set its own ratification process. This should include cross country public hearings no later than next spring and a binding national referendum no later than June 30th, 2017. On such important matters the decision must be the unequivocal choice of the majority of Canadians. It is also a unique opportunity to reaffirm our commitment to genuine democratic values.
    Robert Billyard,
    Mission BC
    Please sign on and share:

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