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Reputation as Expressed in the Canadian Law of Geographical Indications

Publicerad i Stockholm IP Law Review 2023 #1, december 2023 s. 37–46

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Reputation is a core concept in geographical indications. It has been a substantive element in defining geographical indications since their international recognition in the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In addition to TRIPS, which required member states, including Canada, to only regulate geographical indications for wine and spirits, the trade agreements which Canada signed, such as the 2014 Canada-Korea Free Trade Agreement and 2016 Canada-European Union Comprehensive Economic and Trade Agreement (CETA), required Canada to amend its Trademarks Act to include geographical indications for various food and agricultural products. However, none of these agreements required Canada to change the definition of geographical indications. The main argument in this article is that there is no geographical indication without satisfying the evidence of reputation. In Canada, a request to register geographical indication must be submitted directly to the Canadian Intellectual Property Office (CIPO), which then rigorously examines the application. Even though there has not been much litigation involving geographical indications in Canada, it is clear from the legislation that an applicant can provide evidence of reputation during the application process sufficient to support the awarding of geographical indication protection as declared in the Canadian statute. The decision in Canadian 2021 Champagne v Sugarfina, Inc. shows that the evidence of reputation was vital in protecting the Champagne geographical indication.