Recognition, enforcement and licensing of intellectual property (IP) have long been drivers of commerce, but recent decades have seen legislators the world over turn their minds to the role that IP plays in stimulating trade between countries or regions.

For instance, the Canada-Korea Free Trade Agreement (CKFTA) provided a useful platform for Canada and South Korea to mutually affirm the IP legislation current in both countries. It also provides an opportunity to address the growing interest in protecting Geographic Indicators (GI).

A GI is used to denote the specific geographic place of origin for a product which has become known for traits or qualities arising from state-sanctioned set means of production local to that place of origin. Best known for protecting traditional foods or wines and spirits such as Gorgonzola cheese, Chablis and Irish Cream derived from ‘old-world' countries with long-extant but rarely vast agricultural regions, GIs are increasingly of interest to ‘new-world' countries including Canada and South Korea as a means of protecting original, local products.

By the early 1900s, France had begun to formalize regulatory practices going back centuries into its appellation d'origine contrôlée (AOC) (controlled designation of origin) system which provided for certification of wines and various foodstuffs produced to set standards and originating in specified regions of France. The word Champagne, for example, was granted AOC status in 1936 and can only be used to denote sparkling wine made under strict rules governing choice of grape, vineyard operations and fermentation.

More than a century after introduction of the AOC, GIs are increasingly of interest to trade negotiators outside of Europe as a means of cementing protection for a traditional product in the commerce of trading partners.

The CKFTA requires that South Korea protect the terms “Canadian whisky”, “Whisky canadien”, “Canadian rye whisky” and “Rye Whisky canadien” from improper use, while Canada must equally protect the interests of Korea in “Goryeo Hongsam”, “Goryeo Baeksam”, “Goryeo Susam” and “ Icheon Ssal”, and their translations into English and French: “Korean red ginseng”, “ginseng rouge de Corée “, “Korean white ginseng,”, “ginseng blanc de Corée”, “Korean fresh ginseng”, “ginseng frais de Corée”, and “Icheonrice”, “riz d'Icheon”, as geographical indications.

In considering South Korea's requirement that its GIs for rice and ginseng be protected it is important to realize that South Korea has limited terrain for agriculture of any type. Its Icheon rice dominates in coastal agriculture while ginseng can be grown both on its coasts and mountains. Both are promoted internationally and are renown and sought after by consumers in Korea's trading partners.

Wild rice can be grown in some regions of Canada and a type of ginseng first discovered near Montréal centuries ago, now known as American ginseng, grows throughout eastern North America.

While GIs can lend cachet to a product, importantly they can also play a role in disrupting trade in fraudulently or unlawfully substituted food products.

The presence of GIs in Canada may seem negligible but their presence should be seen as a sign of increased awareness by the Government of Canada in the modern value of this ancient form of source protection. As time and trade moves along, it will not come as a surprise if GIs extend to non-agricultural goods as well as services.

Aside from bringing a focus to GIs, the CKFTA addresses: trade in goods (both industrial and non-agricultural goods such as fish, and seafood as well as forestry and wood-based products. The Agreement also covers trade in services.

Leading up to the Agreement, Canada's exports to South Korea came largely from the natural resources sector but also included fertilizer, airplanes and manufactured industrial goods.

Trade in medical devices, pharmaceuticals, information and communications technology, textiles, apparel, automotive, fish and seafood, agri-food products, potatoes, beef, pork, wines and spirits will all benefit from tariff relief under the CKFTA.

Financial, telecommunications, e-commerce and investment services are also the subject of CKFTA. In the case of services, it appears that the focus is not so much on existing barriers but instead on not unduly burdening new or enhanced services with tariffs or other barriers.

In short, the CKFTA should facilitate greater trade in goods and services between Canada and South Korea. Canadian and South Korean businesses, scientists and artists should consider the nature and scope of business opportunities in their respective countries and what IP rights they may wish to protect to enhance these investments. Canada will adopt the Madrid Protocol, Singapore Treaty on Trademarks and Nice Protocol, likely sometime early in 2017. These three international instruments will draw new interest in IP protection in Canada and provide Canadian and South Korean businesses with a more cost-effective and streamlined approach to protect their IP at home and abroad.

Expertise

Trademarks
Intellectual Property
Korea