Harmonization of Intellectual Property Rights in Light of Current Political Changes (Brexit, Donald Trump, and the EU)

By: Elias Borges, patent & trademark lawyer.

As everyone is aware, Donald Trump was recently elected president of the United States, and as one of his first official acts following his inauguration, he canceled his nation's participation in the Trans Pacific Partnership (TPP). President Trump's executive order has, for all intents and purposes, ended the TPP. Just days ago, President Trump also signaled that he will be terminating the North American Free Trade Act (NAFTA). The Canada-US free trade agreement will probably remain in place, at least for now. Previous to this, the United Kingdom narrowly voted in favor of exiting from the European Union (EU). The results of the Brexit pole has raised the possibility that other countries, particularly France may likewise vote to leave the EU (Frexit is the coined term). There is considerable Euroscepticism among the French, with as much as 60% of the population in France having an unfavorable view of the EU. The French presidential election is in April of this year, and Marie Le Pen, a right wing populist politician, has indicated that the presidential election will be a referendum on France leaving the EU. Nor is France the only other country where political forces are currently re-evaluating EU membership. There have been rumblings among the Greeks, the Italians and the Dutch about leaving the EU. Even in Germany, allegedly the strongest supporter of the EU, an increasingly loud minority of people have been calling for a re-evaluation of German participation in the EU. While it is far too early to tell if this is a general trend, it is clear that recent political events have tilted an increasingly large group of people away from “internationalism”, particularly where trade is concerned.

International economic integration has been the driving force to harmonize intellectual property laws across most nations. As more and more companies have been spreading their operations among multiple countries, there has been a parallel effort to ensure that the same intellectual property rights and procedures are in place in all of the countries likely to be engaged in trade. For example, in Europe, in addition to national patent and trademark offices, there is a European patent and trademark office which gives an applicant an easier path to protect their patent and trademark rights across multiple European countries. As part of this international effort, countries such as Canada and the United States have amended their intellectual property laws to conform more closely with those of Europe and Japan. The recent changes to the Canadian Trademarks Act which did away with the use requirement for trademark registration were the result of harmonizing Canadian trademark law with European trademark law. I have noted in a previous article that these recent changes to Canadian trademark law are not, in my opinion, in the best interests of Canadian businesses. In another recent article where I correctly predicted that US President Donald Trump would cancel the TPP, I stated that Donald Trump likewise might take aggressive measures to curb China's alleged misappropriation of American intellectual property. Will he amend US patent law to curtail what he sees as China's unfair exploitation of US intellectual property assets? Will his administration roll back recent changes to US patent laws? No one knows and he has thus far said little on the subject.

Given the recent uncertainty in the political climate in the United States and Europe, I think it's time that we re-evaluate the pace of Canadian intellectual property harmonization with Europe. Will harmonizing our laws to match European laws make sense in a world where the EU is greatly reduced and where the United States becomes increasingly protectionist? If we must harmonize our laws, should we harmonize them with the United States, still our largest trade partner, or with Europe? Given the uncertainty created by recent political events in the United States and Canada, should Canada delay implementing changes to our trademarks act? These are all valid questions. While it is still early in the current political cycle, and it's quite possible that these “protectionist sentiments” may dissipate and vanish within a year, certainly it's time to ask the question, “what's our hurry”? Surely, we can afford to wait a year or two longer before adopting changes which, until quite recently, were made to meet the needs of a different economic and political climate.