USMCA Introduces Significant Intellectual Property Enhancements for Canada and Mexico While Maintaining U.S. Standards

For the first time in nearly three decades, the United States has entered into a comprehensive trade agreement with its North American neighbors, Mexico and Canada. The U.S.-Mexico-Canada Agreement (USMCA), signed into law by President Donald Trump on January 29, 2020, replaces the North American Free Trade Agreement (NAFTA) and impacts multiple legal domains including labor, environment, digital trade, and dispute resolution. Among its most significant provisions are the varied enhancements to intellectual property rights (IPR) across the member countries.

While the USMCA’s Chapter 20 provisions on intellectual property do not mandate changes to U.S. law, they notably expand protections for rights holders in Canada and Mexico. One key area of reform is copyright protection. Currently, Canada provides copyright terms of the author’s lifetime plus 50 years or 70 years from first publication, while Mexico offers terms of the author’s lifetime plus 100 years, 75 years from first performance, or 50 years from first publication. The USMCA harmonizes these terms by extending protection to the author’s lifetime plus 70 years or 75 years from first publication. This results in Canada extending copyright protection by an additional 25 years after the author’s death or five more years from first publication, and Mexico increasing protection by 25 years from first publication.

The agreement also mandates full national treatment for copyrights and related rights, ensuring that U.S. authors receive the same protections as domestic authors in Mexico and Canada. Furthermore, the USMCA introduces a safe harbor provision akin to the U.S. Digital Millennium Copyright Act (DMCA), shielding internet service providers from liability for third-party infringing content on their platforms. It also imposes criminal penalties and civil remedies targeting satellite signal theft, cable piracy, and unauthorized recording of copyrighted films in theaters.

Trademark protections are similarly expanded under the USMCA. The scope of protectable marks now explicitly includes sounds and encourages the registration of scent marks through “best efforts.” The agreement adopts the U.S. “likelihood of confusion” standard for infringement determinations, with a presumption of confusion when the infringing mark is identical to a registered mark used on identical goods or services. Well-known marks receive enhanced protections without the need for registration, listing, or prior recognition, and their reputations need not extend beyond niche markets. These marks are protected against unauthorized use on non-identical goods and services. Additionally, customs officials are granted ex officio authority to intercept suspected counterfeit goods at ports of entry.

The USMCA introduces transparency and due process requirements for the registration of geographical indications (GIs), which certify that products originate from specific locations and possess certain qualities. Governments must review GI applications against guidelines designed to prevent the registration of common names or GIs confusingly similar to pre-existing trademarks. The agreement also allows parties to submit objections that can block GI registrations without public comment.

Patent protections see important updates as well. The USMCA provides for patent term adjustments to compensate for unreasonable delays by patent offices or regulatory agencies. Such delays are defined as exceeding five years from the patent application filing date or more than three years after a request for examination, whichever is later. Industrial designs, which protect the ornamental or aesthetic aspects of products, now benefit from a 15-year protection period.

However, not all proposed expansions survived the ratification process. A contentious provision that would have granted 10 years of regulatory data protection for biologic drugs—medicines derived from living organisms—was removed. Consequently, Canada and Mexico retain their existing biologic exclusivity periods of eight and five years, respectively.

Trade secret protections are also strengthened under the USMCA. The agreement enforces measures against misappropriation, including criminal penalties for willful violations, applicable to both private entities and state-owned enterprises. The definitions of “trade secret” and “misappropriation” align closely with the Uniform Trade Secret Act, widely adopted across U.S. states. The USMCA further mandates procedures to safeguard trade secret confidentiality during civil, criminal, or regulatory proceedings.

The negotiation and ratification of the USMCA underscore the increasing significance of intellectual property in international commerce. By extending and harmonizing IP protections across North America, the agreement offers enhanced legal certainty and enforcement mechanisms for IP owners and users alike. Stakeholders on both sides of the U.S. border should closely monitor these developments to leverage the expanded protections and comply with new procedural requirements.