Are your goods on the CBSA Target List?
Twice each year CBSA publishes it’s Trade Compliance Verification Priorities. This is a list of imported products that CBSA is targeting for trade verification audits. The CBSA uses compliance verifications to ensure that importers comply with customs legal requirements and programs and determine compliance within industry sectors. Audits look at tariff classification, valuation and country of origin to ensure they are accurate.
The current list can be viewed on CBSA website using this link.
It is prudent to review this information for any importer. As your customs broker, we can help. If your company imports any of the products on the list, please contact us today to discuss your risk management.
Canada and the U.S. have reached a tentative deal to overhaul the North American free-trade agreement after intensive weekend talks, trading access to Canada’s protected dairy market for the preservation of a key dispute-resolution system and exemption from threatened auto tariffs.
President Donald Trump signed off on the agreement late Sunday night, said four sources with knowledge of the closed-door negotiations. Prime Minister Justin Trudeau convened a late Sunday cabinet meeting at his office in Ottawa. The Mexican Economy Ministry, meanwhile, said it presented text of the preliminary deal to the Mexican Senate.
NAFTA will be renamed the United States-Mexico-Canada Agreement – or USMC, with the United States posting the text of the agreement online. Mr. Trump had previously indicated he wanted to do away with the phrase “NAFTA."
In a statement late Sunday, Foreign Affairs Minister Chrystia Freeland confirmed that Canada and the United States had settled upon a “new, modernized trade agreement for the 21st Century: the United States-Mexico-Canada Agreement.”
Canada preserved the Chapter 19 dispute settlement provision, satisfying Mr. Trudeau’s long-standing red line in the negotiations. The deal will also keep in place protections for Canadian cultural industries.
Mr. Trump, for his part, gained the right for American farmers to sell more products into Canada’s tightly-controlled supply managed dairy system, his major trade complaint with Canada over the last year and a half.
A side agreement would see the Trump administration guarantee it will not impose tariffs on most auto imports from Canada.
On October 30, 2016, Canada and the European Union officially signed the Comprehensive Economic and Trade Agreement (CETA). Bill C-30, the CETA Implementation Act, was tabled on October 31, 2016.
In addition to reducing tariffs and others barriers to trade between Canada and the EU, CETA also seeks to harmonize certain aspects of the signatory's intellectual property laws, ostensibly in order to encourage trade. With respect to trademarks, CETA requires "all reasonable efforts" to promote accession by member states to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks and the Singapore Treaty on the Law of Trademarks. The 2014 amendments to the Trade-marks Act are part of Canada's efforts towards accession to the Madrid Protocol and Singapore Treaty.
Brand owners should be aware of CETA's other significant impacts on Canadian trademark law, particularly the changes relating to the protection of geographic indicators. Geographic indicators, or GI's, are words that connote the origin of the goods, and are viewed by countries and businesses in those countries as words that are so integrally connected to the goods that use of those words on goods that do not originate from those countries would be misleading. Currently, the Canadian Trade-marks Act only affords protection for GI's relating to a limited list of wine and spirits.
Here are the seven changes to the GI protection that will likely have the most impact on trademark holders in Canada:
1. Protection for GI's will now extend to agricultural products and food.
Canadian GI protection will expand significantly to agricultural products and foods, including to certain cheeses, meats, baked goods, oils, spices, nuts, cereals and animal fats.
The Registrar of Trademarks has the onus of maintaining a list of all GI's. Entry on the Register will take place once a Minister's statement of the intended GI and a translation has been published on the Canadian Intellectual Property Office (CIPO) website and no objection has been filed within two months, or any filed objection has been withdrawn or rejected. The Bill includes a list of details to be included in the Minister's statement, including, for non-Canadian wines, spirits, products or foods, that the indication is protected by the law of the applicable originating territory. Removal from the list occurs on a request of the Minister, or by Federal Court order.
2. A new definition of "confusion" related to GI's compared to trademarks has been added.
A trademark will be confusing with a GI if use of both would likely lead to the inference that the goods came from the same source. Factors similar to those now used to determine confusion between trademarks and other marks and trade names will apply.
3. New "prohibited uses" will apply.
It will become unlawful to use a words, as a trademark or otherwise, that is a protected GI, if the goods are either no produced under the rules of the territory, or if they do not originate from the territory. Similarly, use of a protected GI on foods or agricultural products that are in the same category as the protected GI will become unlawful. These prohibitions will impact not only use, but also registration. Amendments to section 12 of the Trade-marks Act will provide that trademarks that consist of protected GI's identifying wines, spirits, agricultural products or foods that do not originate in the applicable territory will be unregistable.
4. Bill C-30 contains exceptions to preserve Canadian trademark rights and limit the impact on current users.
Several exceptions are permitted, including use of a person's name, except if misleading, or use in comparative advertising, except on labels and packaging. Exceptions for comparative advertising ar ein line with Canadian case law on depreciation of goodwill under section 22 of the Trade-marks Act, which has effectively curtailed actions for deprecation of goodwill to instances where a competitor's mark is displayed on a product or it's packaging, or at the point of sale.
Wine or spirit names in continuous use by a Canadian (person or entity doing business in Canada) prior to April 1994, will be permitted. Certain cheeses such as Feta, Asiago and Munster and meats including "Jambon de Bayonne" will be excepted, if those words were used for 10 years prior to October 2013. Similarly, use of "Feta-type" or "Fontina-style" will be permitted, if the place of origin is clearly noted.
The prohibitions will not apply to words that are protected GI's but which are also customary common names, or to grape or plant varieties or animal breeds, previously used in Canada, or to trademarks used or filed before the publication of any GI.
In addition, Canadians will maintain the ability to use common English and French names for certain agricultural products or foods, such as "Valencia Orange", "Black Forest Ham", "Parmesan", "Tiroler Bacon" and "St George Cheese".
5. New grounds for objection will be introduced and deadlines will be shortened.
Objections to GI's will need to be filed within two months of publication of the Minister's statement of intent to list a new GI (shortened from the current deadline of three months). The Bill also confirms that the procedure applies to both proposed GI's and translations, and identifies the grounds for objection, including that the mark is not a GI; is identical to a common name for the goods; and for agricultural products and food, and the indication is confusing wit ha trademark that is registered, previously used, or already the subject of an application. The Registrar is given its own discretion to reject any objection as frivolous, or at the request of the authority responsible for the GI, to strike all or part of the objection. Otherwise, the responsbile authority must file a counter statement within two months. Parties may file deviance and make representations.
6. Any interested person may bring an application to remove a GI from the protected list.
The Bill provides a mechanism by which any interested party may make an application to the Federal Court to have a GI removed from the protected list of indicators. Grounds for removal are that the indicator is either not a GI; is identical to a customary term for a wine, spirit, agricultural product or food; is not protected by the law applicable to the territory in which the product is identified as originating; or the indicator is confusing with a registered trademark, or a previously used mark that has not been abandoned. Interested parties cannot, however, apply for the removal of the protected EU GI's listed in Part A of Annex 20-A of CETA, or for the protected Korean GI's also enumerated in the Bill. Well known examples of GI's that cannot be removed include the European indicators "Prosciutto di Parma", "Parmigiano Reggiano", "Brie de Meaux", "aceto balsamico di Modena" and "Mortadella Bologna", and Korean indicators such as "Koran Red Ginseng" and "Icheon Rice".
7. Request for Assistance procedures will be available for "protected GI's".
The Trade-marks Act's current customs request for assistance procedures will become available for "protected marks", defined as registered trademarks and protected GI's. Further, it will become unlawful to import or export wines, spirits, agricultural products or foods if a protected GI is displayed on the goods, their labels, or their packaging, and the goods either do not originate from the territory indicated or were not produced in accordance with the laws of the territory. Exceptions will exist, however, for the import or export of goods by an individual for personal use, and for instances where goods pass through Canada in the course of transit between two locations outside of Canada.
The complete notice is available on the Canada Border Services Agency website.
This notice provides information on obtaining refunds of surtax, paid on certain goods and under certain conditions. A refund of surtax is also available for some temporarily imported goods, after exportation.
The remission order remits the surtaxes imposed by the United States Surtax Order (Steel and Aluminum) and the United States Surtax Order (Other Goods) which took effect on July 1, 2018 (25% in the case of certain steel products, 10% in the case of certain aluminum products and 10% for certain other goods listed in the order) under the following situations:
Pursuant to section 115 of the Customs Tariff, in respect of the goods listed in Schedule 1 and Schedule 2 of the remission order;
Pursuant to section 115 of the Customs Tariff, in respect of goods classified under tariff item No. 8903.10.00, 8903.91.00, 8903.92.00 or 8903.99.90 in the List of Tariff Provisions set out in the schedule to the Customs Tariff, excluding those that have been exported from Canada and then subsequently re-imported into Canada; and
Goods temporarily imported into Canada for the purposes of repair, alteration, or storage, including those classified under tariff item No. 8903.10.00, 8903.91.00, 8903.92.00 or 8903.99.90 that have been exported from Canada.
The administration of the remission order is the responsibility of the Canada Border Services Agency (CBSA).
Application (Steel and Aluminum)
(a) the good listed in the schedule was imported into Canada on or after July 1, 2018 and subject to surtaxes;
(b) no other claim for relief of the surtax has been granted under the Customs Tariff in respect of the good;
(c) the importer makes a claim for remission to the Minister of Public Safety and Emergency Preparedness within two years after the date of importation.
(d) the importer files, on request, the evidence or information that the Canada Border Services Agency requires to determine eligibility for remission;
(e) the importer agrees that it is subject, at any time, including after the remission, to review by the Canada Border Services Agency for the purpose of determining whether the information supplied by the importer under paragraph (c) or (d) is accurate and complete and whether the facts on which the Canada Border Services Agency relied or intends to rely to determine the eligibility for remission remain unchanged in all material respects; and
(f) at the time when the Canada Border Services Agency conducts the review referred to in paragraph (e), the Canada Border Services Agency must be able to conclude that the information supplied remains accurate and complete and that the facts remain unchanged in all material respects.
(g) goods described in Schedule 2 must be imported into Canada no later than December 31, 2018.
All claims for relief of surtax under the remission order for these goods described in Schedule 1 and Schedule 2 must attach all relevant documents (e.g. B3 form, purchase order, commercial invoice, Canada customs invoice, bill of lading, way bill, etc.) that demonstrate that the goods imported match the description of one of the goods described in Schedule 1 and Schedule 2 of the remission order.
Application (Other Goods)
Remission is granted for goods classified under tariff item No. 8903.10.00, 8903.91.00, 8903.92.00 or 8903.99.90 in the List of Tariff Provisions set out in the schedule to the Customs Tariff, excluding those that have been exported from Canada and then subsequently re-imported into Canada. Remission for these goods is granted under the following conditions:
(a) the good was imported into Canada on or after July 1, 2018 and subject to surtaxes;
(b) the good was both purchased under contract and sold under contract prior to May 31, 2018;
(c) no other claim for relief of the surtax has been granted under the Customs Tariff in respect of the good;
(d) the importer makes a claim for remission to the Minister of Public Safety and Emergency Preparedness within two years after the date of importation;
(e) the importer files, on request, the evidence or information that the Canada Border Services Agency requires to determine eligibility for remission;
(f) the importer agrees that it is subject, at any time, including after the remission, to review by the Canada Border Services Agency for the purpose of determining whether the information supplied by the importer under paragraph (d) or (e) is accurate and complete and whether the facts on which the Canada Border Services Agency relied or intends to rely to determine the eligibility for remission remain unchanged in all material respects; and
(g) at the time when the Canada Border Services Agency conducts the review referred to in paragraph (f), the Canada Border Services Agency must be able to conclude that the information supplied remains accurate and complete and that the facts remain unchanged in all material respects.
The remission order referred to in this notice is available on the Department of Finance Canada website. Please note that the HS tariff classification numbers provided are product definition specific.
September 21, 2017 has been set by the Government of Canada as the date on which the majority of the Act implementing the Comprehensive Economic and Trade Agreement between Canada and the European Union (known as "CETA") will come into force. Negotiations relating to this trade agreement began in 2009, and the coming into force represents a major step in implementing CETA, which was signed by the parties in October 2016.
The agreement has been characterized by the Federal Government as "by far one of Canada's most ambitious trade initiatives", and covers a wide range of areas, including import and export tariffs, labour and environment, food and drugs as well as intellectual property.
From a trademark perspective, September 21 will see the implementation of an expanded list of protected geographical indications (known as GI's), new mechanisms integrated into the Trade-marks Act for protecting GI's, as well as new provisions relating to oppositions, cancellation, and exceptions, in respect of GI's.
1. The list of protected GI's will be expanded by the Register of Trademarks to include indications listed in CETA as well as in the Canada-Korea Economic Growth and Prosperity Act (which will help Canada comply with the GI provisions of the Canada-Korea Free Trade Agreement, which came into force January 1, 2015.
2. Currently, the list of protected GI's includes only wines and spirits, but will be expanded to include agricultural products and food, including cheeses and meats. A list of the GI's protected under CETA is available here.
3. GI's protected under CETA or the Canada-Korea Free Trade Agreement will not be subject to the same practices traditionally associated with GI's -- they will be protected as soon as they are listed, are not subject to the objection procedure for proposed GI's, and cannot be removed by following the ordinary removal procedure for GI's.
4. The procedure for entry of future GI"s on the list of geographical indications, as well as objection and removal provisions are clarified.
5. There is a new definition and test for "confusions" between GI's and trademarks for the purposes of objecting to proposed GI's and removing GI's from the list -- a trademark will be confusing with a GI if use of both would likely lead to the inference that the goods came from the same source. Factors similar to those now used to determine confusion between trademarks and/or trade names will apply.
6. Adoption and use of a protected GI as a trademark or otherwise is prohibited if the goods: are not produced under the rules of the territory; do not originate from the territory; or (in the case of foods and agricultural products) are in the same category as the protected GI. However, there are certain exceptions: where the responsible authority consents; in certain types of comparative advertising (however comparative advertising on labels and packaging is not permitted); or where the GI is a person's name, a customary name or term for the wine, spirit, agricultural product or food in Canada, or the common name of certain agricultural products or food.
7. There are also certain specific exceptions allowing continued use of the new GI's for "Asiago", "Feta", "Fontina", "Gorgonzola", "Munster", "Beaufort", Nurnberger Bratwurste" and "Jambon de Bayonne".
8. In line with the expanded protections for GI's, the Trade-marks Act is amended to prohibit the registration of ordinary trademarks that are in whole or in part for protected GI's for food or agricultural products where the goods covered by the mark are in the same or a similar category.
9. The trademark infringement provisions in the Trade-marks Act will contain an exception for certain listed GI's (i.e. use of a GI that is confusing with a trademark registration will not be considered "infringing")
10. The prohibitions in respect of import/export and the Request for Assistance border measures program are extended to protected GI's to help combat counterfeits.
There are some tricky transition rules for certain CETA GI's, including a phase-out period for current uses for GI's that will soon become prohibited (Just by way of example, the prohibition on use of the indication "Beaufort" will not apply until September 21, 2022 to any person who, themselves or through a predecessor-in-title, began using that GI in connection with an agricultural product or cheese after October 19, 2003).