By Alan Mercer
I wanted to raise a question about the Trans-Pacific Partnership agreement (released text: http://www.mfat.govt.nz/Treaties-and-International-Law/01-Treaties-for-which-NZ-is-Depositary/0-Trans-Pacific-Partnership-Text.php) with people who are more knowledgeable than me and who might better understand the technicalities of law, international trade and trade agreements:
Will the TPP lead to a situation in which Canadian consumers are prevented from knowing the country of origin for food and other products they purchase?
Your feedback is welcome on the following points. I might be misunderstanding them but I think it’s fair to ask the question:
Chapter 3: Rules of Origin and Origin Procedures
Article 3.21: Basis of a Certification of Origin
4. For greater certainty, nothing in paragraph 1 or 2 shall be construed to allow a Party to require an exporter or producer to complete a certification of origin or provide a certification of origin to another person. (Page 3-16)
Comment: It seems like certificates of origin won’t be required? So how do business know where the food comes from in every case?
Article 3.22: Discrepancies
Each Party shall provide that it shall not reject a certification of origin due to minor errors or discrepancies in the certification of origin. (page 3-16)
Comment: The authority of the importing Party seems to be limited here. What does “minor” mean? Is contradictory information about the country of origin going to slide on through, leading to uncertainty?
Article 3.23: Waiver of Certification of Origin
1. No Party shall require a certification of origin if:
(a) the customs value of the importation does not exceed US $1000 or the equivalent amount in the importing Party’s currency or any higher amount as the importing Party may establish; or
(b) it is a good for which the importing Party has waived the requirement . . . .
Comment: It seems like a certification of origin won’t be required–either sometimes or much of the time depending on what this means. Does the “value of the importation” refer to the total value of all the items being shipped together, or to the individual value of each item? If the latter is true, then many products, including food products, are never going to have a requirement for a certificate of origin?
CHAPTER 15: Government Procurement
Article 15.12: Technical Specifications
3. A procuring entity shall not prescribe technical specifications that require or refer to a particular trademark or trade name, patent, copyright, design, type, specific origin, producer or supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement requirements and provided that, in these cases, the procuring entity includes words such as “or equivalent” in the tender documentation. (Page 15-16).
Comment: It seems procuring entities are not allowed to require information about the origin, producer or supplier in the technical specifications. Wouldn’t this thin down the information trail? I guess, since it’s Chapter 15, we’re talking about government procurement in this case. It sounds like this is going to make it difficult for the Canadian government to figure out the country a supplier belongs to, maybe even whether or not it’s a domestic supplier. Isn’t that a huge change?
CHAPTER 18: Intellectual Property
Article 18.1 Definitions
geographical indication means an indication that identifies a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin; (Page 18 – 1)
https://en.wikipedia.org/wiki/Geographical_indication explains “geographical indication” in the context of concerns countries have about the misleading use of, for example, “Gruyère” when it comes to cheese.
A geographical indication (GI) is a name or sign used on certain products which corresponds to a specific geographical location or origin (e.g. a town, region, or country). . . .
. . . Although a GI is not strictly a type of trademark as it does not serve to exclusively identify a specific commercial enterprise, there are usually prohibitions against registration of a trademark which constitutes a geographical indication. In countries that do not specifically recognize GIs, regional trade associations may implement them in terms of certification marks.
. . . The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) defines “geographical indications” as indications that identify a good as “originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographic origin.”
Comments: So, suddenly all these nations are going to change their laws to match these types of restrictions in new trade agreements. But how far is this protection and control of names going to go because of international agreements like the TPP? Will it go beyond specific qualities and just end up covering country names in general and their “reputation”? See Article 18.29 below! I don’t know the current situation with Canadian laws. Will Canadian laws have to change and allow more use of these restrictive geographical indicators? And will this tend to reduce the amount of useful information on packaging about the origin of goods? Will consumers have to depend on the marketing information from the producing countries (or lack of information)?
Article 18.9: Transparency
2. Each Party shall, subject to its law, endeavour to make available on the Internet information that it makes public concerning applications for trademarks, geographical indications, designs, patents and plant variety rights.
3. Each Party shall, subject to its law, make available on the Internet information that it makes public concerning registered or granted trademarks, geographical indications, designs, patents and plant variety rights, sufficient to enable the public to become acquainted with those registered or granted rights. (Page 18 – 6)
Comment: “Transparency” refers to each Party making information available about whatever Intellectual Property concepts it has created (if that information is “public” and “subject to its law”) such as protecting the use of “geographical indications.” But hopefully the intention is always to correct misinformation (misrepresented products) and not to suppress the use of country names.
Article 18.19: Collective and Certification Marks
Each Party shall provide that trademarks include collective marks and certification marks. A Party is not obligated to treat certification marks as a separate category in its law, provided that those marks are protected. Each Party shall also provide that signs that may serve as geographical indications are capable of protection under its trademark system. (Page 18 – 10)
Comment: Is the name of a country going to be treated restrictively like a trademark? See Article 18.29 below!
Article 18.20: Use of Identical or Similar Signs
Each Party shall provide that the owner of a registered trademark has the exclusive right to prevent third parties that do not have the owner’s consent from using in the course of trade identical or similar signs, including subsequent geographical indications, for goods or services that are related to those goods or services in respect of which the owner’s trademark is registered, where such use would result in a likelihood of confusion. In the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. (Page 18 – 10)
11 For greater certainty, the exclusive right in this Article applies to cases of unauthorised use of geographical indications with goods for which the trademark is registered, in cases in which the use of that geographical indication in the course of trade would result in a likelihood of confusion as to the source of the goods.(Page 18 – 10)
Comment: It seems to me this right would make it less likely that a product will be labelled with the country of origin if the business has any doubt or lack of information about the origin.
IMPORTANT: Article 18.29: Country Names
Each Party shall provide the legal means for interested persons to prevent commercial use of the country name of a Party in relation to a good in a manner that misleads consumers as to the origin of that good.
Comment: Key concern! It makes sense that information should not be misleading, but if the information trail has been thinned down (see previous points about certificate of origin not being required), then isn’t such legal means just going to ensure that businesses won’t bother taking any chances informing consumers about the country of origin? Why is it necessary to protect the name of a country in order to provide a legal remedy for correcting misleading information?
Article 18.30: Recognition of Geographical Indications
The Parties recognise that geographical indications may be protected through a trademark or sui generis system or other legal means. (Page 18 – 16)
Article 18.31: Administrative Procedures for the Protection or Recognition of Geographical Indications
If a Party provides administrative procedures for the protection or recognition of geographical indications, whether through a trademark or a sui generis system, that Party shall with respect to applications for that protection or petitions for that recognition:
(a) accept those applications or petitions without requiring intercession by a Party on behalf of its nationals;
(b) process those applications or petitions without imposition of overly burdensome formalities;
(c) ensure that its laws and regulations governing the filing of those applications or petitions are readily available to the public and clearly set out the procedures for these actions;
(d) make available information sufficient to allow the general public to obtain guidance concerning the procedures for filing applications or petitions and the processing of those applications or petitions in general; and allow an applicant, a petitioner, or their representative to ascertain the status of specific applications and petitions;
(e) ensure that those applications or petitions are published for opposition and provide procedures for opposing geographical indications that are the subject of applications or petitions; and
(f) provide for cancellation of the protection or recognition afforded to a geographical indication. (Page 18 – 16)
Article 18.32: Grounds of Opposition and Cancellation
1. If a Party protects or recognises a geographical indication through the procedures referred to in Article 18.31 (Administrative Procedures for the Protection or Recognition of Geographical Indications), that Party shall provide procedures that allow interested persons to object to the protection or recognition of a geographical indication and that allow for any such protection or recognition to be refused or otherwise not afforded, at least, on the following grounds:
(a) the geographical indication is likely to cause confusion with a trademark that is the subject of a pre-existing good faith pending application or registration in the territory of the Party;
(b) the geographical indication is likely to cause confusion with a pre-existing trademark, the rights to which have been acquired in accordance with the Party’s law; and
(c) the geographical indication is a term customary in common language as the common name for the relevant good in the territory of the Party.
2. If a Party has protected or recognised a geographical indication through the procedures referred to in Article 18.31 (Administrative Procedures for the Protection or Recognition of Geographical Indications), that Party shall provide procedures that allow for interested persons to seek the cancellation of a geographical indication, and that allow for the protection or recognition to be cancelled, at least, on the grounds listed in paragraph 1. A Party may provide that the grounds listed in paragraph 1 shall apply as of the time of filing the request for protection or recognition of a geographical indication in the territory of the Party.
3. No Party shall preclude the possibility that the protection or recognition of a geographical indication may be cancelled, or otherwise cease, on the basis that the protected or recognised term has ceased meeting the conditions upon which the protection or recognition was originally granted in that Party.
4. If a Party has in place a sui generis system for protecting unregistered geographical indications by means of judicial procedures, that Party shall provide that its judicial authorities have the authority to deny the protection or recognition of a geographical indication if any of the circumstances identified in paragraph 1 has been established. That Party shall also provide a process that allows interested persons to commence a proceeding on the grounds identified in paragraph 1.
5. If a Party provides protection or recognition of a geographical indication through the procedures referred to in Article 18.31 (Administrative Procedures for the Protection or Recognition of Geographical Indications) to the translation or transliteration of that geographical indication, that Party shall make available procedures that are equivalent to, and grounds that are the same as, those referred to in paragraphs 1 and 2 with respect to that translation or transliteration. (Page 18 – 17 to 18 – 18)
(Relevant articles — see http://www.mfat.govt.nz/Treaties-and-International-Law/01-Treaties-for-which-NZ-is-Depositary/0-Trans-Pacific-Partnership-Text.php — may also include: Chapter 3: 3.18, 3.20, 3.24 and others, Chapter 5: 5.8, Chapter 8: Annex 8-A: points 11 and 14, 18.33, 18.34, also footnote 23 on Page 18-18, articles 18.35, 18.36, and 18.74 point #15. I used the zipped files for my research and missed searching through the little sub-documents with side agreements affecting Canada, but they’re on that page also.)
Conclusion so far
Overall, I think my concern is legitimate even though I could be wrong. The TPP encourages the idea of countries protecting even the country name (not just other kinds of geographical indications) from uses that may be considered misleading.
Combined with the articles that seem to not allow requirements for certifications of origin, this could lead, perhaps, to businesses such as grocery stores not being clearly informed about the country of origin and not being willing to take risks with informing consumers of the country of origin. What if a foreign producer doesn’t want to use the country name on their own packaging? Or, what if a foreign producer is not permitted to use their own country name? Who has the monopoly control over these words and how can that power be abused?
Do I have a point?
Also, by the way, who will “own” the right to use “Canada” or “Ontario” or “Newfoundland” when someone wants to use that on their own packaging? Does the specific business have to ask permission to use it? Will only big business have the money necessary to do the legal maneuvering? I don’t know.
Is there a trend with so-called “free trade” to discourage consumers from making the choice of shopping locally or making judgments about imports? Are we not supposed to have a choice? Considering the source of those who are trying to prevent the labeling of GMO “foods,” I wouldn’t put this motive past the authors of the TPP. “Intellectual Property Rights” just takes another particular form of tyranny and censorship if my concerns are valid. Centralizing the “protection” of words and terms can very easily become censorship of critical information.
Again, I could be wrong of course. It’s too complicated and too big a topic to be certain with the level of information that I have. Set me straight.
If we have doubts about the TPP, CANCEL THE RATIFICATION IN THE CANADIAN PARLIAMENT.
Again, if we have a DOUBT (or two or three or ten) about the TPP, THROW IT OUT.
*Intellectual Property – censorship of the Internet? Concerns.
*Destruction of sovereignty – international tribunals overriding domestic government laws. Concerns.
*Loss of jobs? Concerns.
*Lowering of wages? Concerns.
*Control of information, again with the “Intellectual Property” chapter. Concerns.
If in doubt, throw it out!
Tell your Member of Parliament to TOSS it.
Your MP probably hasn’t read the TPP before he committed to it. Tell him or her to stop following whatever GLOBALIST agenda’s he’s following and follow the concerns of “the people” of his constituency instead.
What do they think? What do they want?
What does he think in good conscience makes for a better Canada? Anyone with any kind of independent mind is going to be better than a bunch of mindless followers following the stupid propaganda of globalist policies. “Oh, it’s good for the economy.”
Is Canada going to be independent? NO! It’s bad enough as it is and every day that goes by, these people are pulling us deeper into a web of dependency, tyranny, chaos, and connections to events we don’t need to be involved with. Pierre Trudeau seemed to be a nationalist in some ways for what that’s worth. Nothing his son, Justin, does is nationalist. It’s all globalist. It’s all banker policies, all the time.
Justin Trudeau openly supported the TPP and voted for Bill C-51 against civil liberties and yet there was this movement on the left during the election that was only concerned about getting Harper out of office.
Don’t think that some of us didn’t notice that!
And don’t think I don’t notice the lame, left-wing articles that try to conflate climate change with the antiwar cause. Baloney. All these people at the Paris climate conference are going to stop their wars, eh?
There is no “left” and “right.” It’s all the same at the top. And Trudeau’s chosen from the top. I heard for a long time the CBC always giving Bob Rae and the Liberals more airtime than the NDP, the Official Opposition at the time, even though the Liberals had a small number of seats. On climate change, there wasn’t any difference between Mulcair on the “left” and Trudeau in the “centre,” but I bet those at the top preferred Trudeau’s vote on Bill C-51. He took the same position as Harper on the “right,” but they preferred Trudeau’s attitude on carbon tax. Trudeau checked all the right boxes and became Prime Minister.
11 December 2015 v.1, v.2
13 December 2015