Geographical Indications, Barriers to Market Access and Preferential Trade Agreements

Canada is currently negotiating a Comprehensive Economic and Trade Agreement (CETA) with the European Union; the issue of Geographic Indications (GIs) is on the negotiating agenda and is expected to be one of the most contentious issues in the negotiations. While the exact nature of protection for GIs to be included in the agreement is not yet clear, there is a potential conflict over market access with the U.S. (and presumably the approximately 50 other countries that use trademarks instead of GIs to protect this type of intellectual property). This paper explores the wider issues surrounding differences in the protection of intellectual property and the effect on market access as well as the potential specific issues pertaining to the CETA for NAFTA members. General issues include, among others, how market access could be restricted either by de facto import bans or the imposition of additional costs on exporting firms; would this qualify as nullification of impairment of a benefit under GATT? Does the TRIPS provides any guidance for this issue and would GIs be treated in the same way as a country entering a customs union and having to pay compensation if it raises tariffs to the common level? Any potential conflict between Canada’s NAFTA commitments and potential CETA provisions are also investigated.