USMCA

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On Monday, April 20, 2020, U.S. Customs and Border Protection (CBP) issued interim instructions for implementation of the U.S.-Mexico-Canada Agreement (USMCA).*  The instructions provide guidance regarding preferential tariff claims under the USMCA.  The Agreement, once it enters into force, provides for the immediate or staged elimination of trade barriers for goods originating in one of the three countries.  The instructions provide guidance regarding rules of origin (including for automotive goods), regional value content (RCV) calculation methods, de minimis rules, transshipment, eligibility for textiles and apparel, making preference claims, and certification and recordkeeping rules and requirements.

The instructions provide a rules of origin definition to determine whether a good qualifies as an “originating good” under the USMCA, such that it is eligible for preferential tariff treatment.  Under USMCA a good is “originating” in the United States, Mexico, or Canada when:

a) The good is wholly obtained or produced entirely in the territory of one or more of the Parties, as defined in Article 4.3 of the Agreement;

b) The good is produced entirely in the territory of one or more of the Parties using non-originating materials provided the good satisfies all applicable requirements of product- specific rules of origin;

c) The good is produced entirely in the territory of one or more of the Parties exclusively from originating materials; or…
Continue Reading CBP Posts Interim Instructions for USMCA Implementation

On December 10, the U.S., Mexican, and Canadian governments signed an updated United States-Mexico-Canada Agreement (“USMCA”) in Mexico City.  The new agreement comes on the heels of months of additional negotiations between the three governments after an original deal was reached last year.  The terms of the new deal respond to criticism that the agreement…

On January 15, the European Union Intellectual Property Office (EUIPO) revoked McDonald’s registered trademark, “Big Mac.”   The name “Big Mac” had been protected in the EU for more than 20 years under international classes 29, 30, and 42 for foods, sandwiches, and services of franchise restaurants, respectively.  Trademarks, which provide legal protections for names, among other things, can be extremely valuable assets for businesses and protect consumers in their purchasing decisions.  The January 15 decision will likely create some concern, if not confusion, for international businesses in how they might protect their brands in major markets.  McDonald’s quickly announced that it plans to appeal the decision, which is set against a backdrop of US-EU trade negotiations and a recent increased focus on intellectual property in trade negotiations.

In its decision, EUIPO found that the evidence McDonald’s provided to prove the genuine use of the name “Big Mac” in the EU, including websites, posters, packing, and affidavits from company representatives in Germany, France, and the UK, was not sufficient.   EUIPO said about the websites, “it could not be concluded whether, or how, a purchase could be made or an order could be placed.”  In addition, the regulating body took issue with brochures because there had been no evidence provided as to whom the brochures were given or how they were dispersed.  The administrative decision also discussed that although some evidence was provided of use, McDonald’s did not prove the extent of use of its mark.

The case to cancel the international fast food giant’s protection was brought by an Irish fast food chain, Supermac’s.  Patrick McDonagh, the managing director of Supermac’s, stated that the intention of the case was to “shine a light on the use of trademark bullying.” …
Continue Reading McDonald’s Big Loss in Big Mac Case

This morning, on the sidelines of the G-20 summit in Argentina, the United States, Canada, and Mexico signed the U.S.-Mexico-Canada Agreement (USMCA).  The new trade deal is slated to replace the 24-year old North American Free Trade Agreement (NAFTA).  Today’s signature date was a critical deadline for the parties because it is Mexican President Enrique Peña Nieto’s last day in office before his successor, Andrés Manuel López Obrador, takes office tomorrow.

The three parties have spent the last 15 months negotiating the final text of the USMCA, with a deal reached first between the U.S. and Mexico at the end of August, and Canada signing onto the agreement with additional tweaks a month later.  We have covered the USMCA in previous blog posts (here, here, here, here, and here).

Each country’s legislature must now approve the agreement for it to take effect.  In the United States, the USMCA was negotiated under Trade Promotion Authority, or “fast track” legislation, meaning that the agreement is subject to an up-or-down vote and Congress cannot modify or amend the agreement itself.  Instead, the hurdles involve the implementing legislation that will be required to give effect to the deal under U.S. law.  The Administration has 60 days to submit to Congress a list of changes to U.S. law that will be required to implement the USMCA, and then must prepare a draft implementing bill and “statement of administrative action” at least 30 days before the bill is actually introduced in the House and Senate.  The House must vote first before the bill moves to the Senate for consideration and a vote.      …
Continue Reading U.S., Canada, and Mexico Sign New NAFTA

On October 1, 2018, the United States, Canada, and Mexico announced that they had reached an agreement to “modernize” the 24-year old North American Free Trade Agreement (NAFTA). When NAFTA came into effect, it created the largest free trade region in the world. Since then, developments in virtually every sector and the advent of cross-border…