Boston University International Law Journal
The definition of a trademark has expanded under the U.S. -Mexico-Canada Agreement ("USMCA "'), which provides more protection for rights holders. Currently, these three countries are bound by the North American Free Trade Agreement ("NAFTA"'), which has a narrow definition for trademarks. The North American Free Trade Agreement ("NAFTA"'), which came into effect on January 1, 1994, was a significant agreement between some of the largest, strongest, and well-developed economies in the world: United States and Canada. It also helped to invigorate Mexico's future economic development. NAFTA's broad purpose was to regulate the exchange of capital, goods, and services across the participating countries. In regards to intellectual property specifically, NAFTA protected and enforced intellectual property rights for signatory countries and promoted innovation, economic growth, and supported job creation. Today, NAFTA's success has led to negotiations for a new trade agreement- the USMCA. USMCA expands NAFTA's narrow definition of trademarks and provides more protection for rights holders. This new agreement will sustain the trade relationship between the United States, Canada and Mexico, and continue to protect intellectual property rights between the signatory countries. This Article will demonstrate the significant changes from NAFTA to USMCA with respect to trademarks. First, the agreement now includes protections for intangibles, such as sounds and scents. Second, trademark owners have the exclusive right to prevent third parties from using the same or similar marks that would lead to confusion. Third, "well-known" trademarks are accorded special protection against third parties' trademarks, even if they are not quite identical. Fourth, trademarks must be classified in accordance with the Nice Agreement Concerning International Classification of Goods and Services for the Purpose of the Registration of Marks ("Nice Agreement"). Fifth, USMCA requires dispute resolution procedures for issues concerning domain names, although it only provides coverage to top-level domain names (e.g., domain names that end in ". us ". mx" and ".ca"). Lastly, it recognizes trademark protections for geographic indicators; for example, only allowing sparkling wine to be called champagne if it is from a certain region in France.
Roberto Rosas, A Comparative Study of Trademarks: USMCA (U.S.-Mexico-Canada Agreement) and NAFTA (North American Free Trade Agreement), 38 B.U. Int'l L. J. 38 (2020).