Last week, the U.S., Mexico, and Canada announced that they had come to terms on the United States-Mexico-Canada Agreement (USMCA), the proposed replacement for NAFTA. I say “proposed” because the treaty still has to be approved by all three countries’ legislatures.
The full text of the proposed USMCA agreement can be read here.
Assuming the USMCA goes into effect as currently proposed, what are the impacts for trademark and copyright holders?
General Stance Towards Intellectual Property
USMCA Article 20.A.8: National Treatment states that “In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of another Party treatment no less favorable than it accords to its own nationals with regard to the protection of intellectual property rights.” This means that as each member country’s IP laws evolve, they have to grant the same rights to citizens of the other signatory countries as those granted to their own citizens.
Trademarks
USCMA Article 20.A.7(2)(b) states that each party shall ratify the Madrid Protocol. The Madrid Protocol is a treaty signed by many countries that allows trademark owners to register their marks in any member countries using a single application.
The U.S. and Mexico are already Madrid Protocol members, and Canada was already moving towards becoming a Madrid member as well, so this is not a substantial change.
USMCA Article 20.C, the Trademark section, goes on to include some highly technical language. For example, Article 20.C.1: Types of Signs Registrable as Trademarks provides favorable treatment for non-traditional trademarks such as sounds and scents. These types of provisions are of great interest to particular industries (perfume manufacturers, for example), but may not have a substantial general economic or legal impact.
Copyrights
USMCA Article 20.H.7: Term of Protection for Copyright and Related Rights states that the term of copyright protection for works created by a living author (as opposed to works created by non-living authors, such as corporations) “shall be not less than the life of the author and 70 years from the author’s death”.
The U.S. is already in compliance with this term, following implementation of the Copyright Term Extension Act (CTEA) of 1998. Mexico’s copyright term is even longer – life + 100 years.
So that leaves Canada. Canada’s Copyright Act grants copyright protection for 50 years after the death of the last living author. Once USCMA goes into force, Canada will have 2.5 years to extend that to a minimum of life + 70.
That may not seem like a big deal for authors working today; many of us don’t spend a lot of time worrying about what will happen to our assets 70 years after we die. Retroactivity is the key, however. Depending on how Canada implements this provision, many valuable works that are around 50 years old may not fall into the public domain for another 20 years or more.
Similar provisions apply to corporate copyrights.
While this change would, from one perspective, merely put Canada in line with international trends, parties who oppose copyright term extensions naturally find this change objectionable.
And Finally, the Cheese Course
The U.S. and Mexico reached a side agreement regarding cheese names. This may have the impact of encouraging more importation and marketing of U.S. cheeses in Mexico.
Looking Forward
If and when USMCA is implemented, we will start to see some impacts quickly – such as Canada’s adoption of the Madrid Protocol. Other results will only become apparent once relevant laws and regulations are put into place. Anyone who tells you they know exactly how USMCA will impact the economy is overstating the case, to put it mildly. If you want to make sure that your business stays on top of the ever-changing world of international IP developments, don’t hesitate to contact me.
