The primary issue in this case was whether the labeling on the wine was false, misleading, or deceptive contrary to and . This issue arose from the requirement in that “a clear indication of the country of origin shall be shown on the principal display panel of a wine.” Mactavish MJ’s key consideration was whether the “Made in Israel” label reasonably met these standards set out in the and .

Striking, however, is the absence of any discussion of which provides a regime for establishing protected geographical indications. Unlike the and , the addresses producer discretion in geographical indications and its relation to consumer understanding, the very issue Mactavish MJ is trying to resolve. Furthermore, as Binnie J pointed out in the is “consumer protection legislation”. It therefore does not suffer from the scope issues Mactavish MJ attributes to the and , the sources brought by the plaintiff. While the was properly not adjudicated, as it was not raised by the parties, it could have provided helpful guidance.

The regime prescribed in the focuses on the question of consumer understanding of geographical rather than political boundaries. While it leaves ample room for discretion in this regard, the repeatedly references “the territory, or the region or locality of a territory, in which the wine … is identified as originating.” Therefore, a product falling outside of a specified political boundary, but still within the region or locality of such a “territory” could, by law, be indicated as originating from the territory. In other words, a wine produced in the Israeli region could properly be labeled as “Made in Israel” without being misleading.

The question is therefore reframed from whether the West Bank is part of the State of Israel, to whether it is within the region of Israel. This approach allows the producer to separate the politically charged foreign policy issues that Mactavish MJ refers to as “profound”, “difficult”, “intractable”, “deeply-felt” and “sensitive” from their requirement to inform the consumer. The reasonable person’s understanding of a region is still a matter in question, but the approach of focusing on this understanding, rather than a legal or political definition of the area restores the concerned laws to their purpose of consumer protection.

. If the case proceeds, perhaps the will yet still shed some light on whether wines made in the West Bank will be allowed to be sold in Canada labeled as “Made in Israel”.

Written by Jared Sues, a second year JD Candidate at Osgoode Hall Law School. Jared is an IP Osgoode IPilogue Editor and Innovation Clinic Coordinator

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What are Geographical Indications in Canada?

Geographical Indications ("GIs") are protected indicia that specifically relate to wines and spirits under the Canadian Trade-marks Act ("the Act").�� A GI identifies the "quality, reputation or other characteristic of the wine or spirit [that] is essentially attributable to its geographical origin".¹��

Once GI protection is obtained, any person is prohibited from using, in any language, the GI as a trade-mark, or otherwise, in connection with a wine or spirit, if it does not originate from the protected territory associated with the GI.��

The Act creates an exception for specifically identified generic wine names, which allows them to be used as a trade-mark or in connection with a wine business.�� Use of these generic wine names cannot be restricted as GIs.����������

What are the statutory changes?

Amendments to the Act have narrowed the list of generic wine names.�� Effective as of December 31, 2008, ‘Burgundy', ‘Bourgogne', ‘Rhine', ‘Rhin', ‘Sauterne' and ‘Sauternes' are no longer protected as generic wine names.��

This is part of a multi-stage process to bring Canada's legislation into compliance with The Agreement between Canada and the European Community on Trade in Wines and Spirit Drinks ("the Agreement") entered into on September 16, 2003.�� In the final stage of implementation of the Agreement, ‘Chablis', ‘Champagne', ‘Port', ‘Porto', and ‘Sherry' will be removed from the list of generic wine names on December 31, 2013.��

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What does this mean?

It is anticipated that the amendments to the list of generic wine names is a precursor to allow European wine producers to apply for protection of wines as GIs in Canada.�� This trend has already been established.�� For example, on the date of entry into force of the Agreement, ‘Bordeaux', ‘Chianti', ‘Claret', ‘Madeira', ‘Malaga', ‘Marsala', ‘Medoc', Médoc', ‘Mosel' and ‘Moselle' were removed as generic wine names.�� As of April 27, 2009, more than half of these wine names are now protected GIs.

As a result, only wines that come from the specific region in which the GI is produced will be able to use that specific wine name.�� If the GI list expands, this will impact trade-mark, marketing and labeling strategies of wines sold in Canada that do not come from the protected GI region.��������

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How do you obtain a GI in Canada?

A "responsible authority" submits an application to the Canadian Trade-marks Office, which is subsequently examined by Agriculture and Agri-Food Canada.�� The application must set out, amongst other things:

"the quality, reputation or other characteristic of the wine or spirit that in the opinion of the Minister qualifies that indication as a Geographical Indication."²

Upon approval, the application is subsequently published in the Canada Gazette, which provides third parties with the opportunity to object to the wine name becoming a GI.�� The only basis of objection is that "the indication is not a Geographical Indication."³

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What can you do?

There are two roles a party can play: applicant or objector.�� If you satisfy the requirement of a "responsible authority", namely that you are "by reason of state or commercial interest, sufficiently connected with and knowledgable with the wine"⁴, you can file an application for GI protection for a previously generic wine name.�� If, however, you do not qualify as a "responsible authority" but have a vested interest in having the wine name not protected as a GI, you can attempt to block the wine name from becoming a GI through the objection process.��

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¹Trade-marks Act, R.S.C. 1985, c. T-13, Section 2

^2��Ibid, Section 11.12(3)(e)

³��Ibid, Section 11.13(2)

⁴��Ibid, Section 11.11

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