2019 CAFLP Annual Conference Panel Recap: “Frontiers of Food Labeling: New Trends in Intellectual Property Law”

"MES MENUS EQUILIBRES-CNIKEL" by EF GH, Emeline Hérail is licensed under CC BY-NC 4.0

The November 9th “Frontiers of Food Labeling: New Trends in Intellectual Property Law” discussed the use of food-based geographical indications (GIs), and its implications in specific case applications.

Marsha Cadogan, from the Centre of International Governance Innovation, discussed the difficulties that may arise with the commercialization of GIs, particularly in regards to traceability and governance. Though the use of GIs may be a means of tracing the origins of food, and therefore would seem to protect against counterfeit products, the scale at which GIs would need to be brought to the supply chain has proven to be difficult. Research into the use of GIs in other countries demonstrates that products may be registered under particular GIs though the linkage between the product and origin are loose, and often times there is a great deal of corruption with this technology.

Marsha also notes that the introduction of artificial intelligence into this area may complicate matters, as GIs may not satisfy the natural and human factors under international treaties such as the Trade Related Aspects of Intellectual Property Rights (TRIPS). There has been talk about revising TRIPS, and other international treaties to include this technology, though Marsha recommends that there is a need for greater involvement by legal professionals to aid those with technological expertise.

Renata Watkin, a PhD candidate at the University of Ottawa, discussed the constitutional implications of the application of GIs. She pointed out two problematic provisions in the Trademarks Act (TMA) in relation to the use of GIs. One focus was on Article 11.11(1), in its definition of responsible authority: the responsible authority could be a person, firm, or other entity that in the Minister’s opinion by reason of state, or commercial interest, is sufficiently connected with and knowledgeable about that product. Under Article 2, the definition of a person includes: “any lawful trade union and any lawful association engaged in trade or business or the promotion thereof (...).” Renata notes that when Article 11.11(1) and Article 2 are read together, the door is open to circumvent the schemes for protection of GIs.

She also focused on Article 11.12(3), which states that, “the indication is protected by the law applicable to the territory in which the product is identified as originating.” Though the power to regulate trademarks is a federal power, control over agriculture production is exclusively a provincial power. As a result, the federal government cannot enact a system of protection of GIs without the participation of provincial governments. Given these implications, Renata recommended that the TMA may need to be amended to be compatible with the division of powers, and that the education of policy and lawmakers as to the nature and functions of GIs may be important to the successful implementation of GIs.

Paul-Erik Veel, a partner at Lenczner Slaght, ended the panel with a specific example of the use of GIs on the domestic front. As counsel to the Vintners Quality Alliance Ontario (VQA), he shared the outcome of a judicial review that challenged portions of the regulatory framework administered by the VQA. Among the arguments advanced by the claimant, were that they had a federally registered trademark which would trump the VQA’s rules as a provincial body, and that the VQA could not set more stringent standards than the federal IceWine Regulations. However, Paul-Erik explained why these constitutional arguments were not successful, and concluded with two important points: (1) although the TMA gives an owner exclusive use of the trademark, it does not give owners an unfettered right to use their trademark in any circumstances, and (2) there is nothing stopping a province for implementing strict standards when the purpose of the standards is for public health and safety.