On April 29, 2025, the United States Trade Representative (USTR) released its 2025 Special 301 Report. Each year, the USTR reports on the adequacy of intellectual property (IP) rights around the world and calls out those countries that allegedly have inadequate IP laws. Canada was put on the Watch List in the 2025 Special 301 Report along with 17 other countries, and the USTR identified several areas where Canada’s IP enforcement is seen to be deficient. Despite this ignominious honour, existing Canadian law and practice can be used effectively to protect and enforce IP rights.
USTR 2025 Special 301 Report: The Canadian Case
Canada remains the only G7 country on the 2025 USTR Watch List. The 2025 USTR Special 301 Report again expressed concerns with Canada’s perceived lack of IP enforcement, particularly at the border and against online piracy.
With respect to border enforcement, the 2025 USTR Special 301 Report draws attention to the low number of seizures of counterfeit goods at the Canadian border, the lack of training for border enforcement officials, and concerns that enforcement is frustrated by Canadian courts failing to issue consistent deterrent-level penalties against those responsible for the importation, distribution, and sale of counterfeit goods. The Report does not explain what constitutes “deterrent-level penalties.” Canada allows owners of copyrights, geographical indications (GIs), and trademarks to file a request for assistance (RFA) with the Canada Border Services Agency (CBSA) and to ask the CBSA to detain suspected counterfeit goods and pirated works at the border. The RFA program was introduced in 2015. The USTR is concerned that the CBSA does not exercise its authority to seize suspected counterfeit goods consistently.
With respect to online piracy, the 2025 USTR Special 301 Report states that levels of online piracy remain very high in Canada, including through direct downloads and streaming.
In addition, the 2025 USTR Special 301 Report highlights several specific complaints about Canada’s intellectual property (IP) enforcement regime, including the following:
- Copyright: The Report identifies concerns with the fair dealing exception in Canada’s Copyright Act.1 Fair dealing allows copyrighted materials to be used for certain specific purposes, including research, private study, education, parody, satire, review, criticism, and news reporting, as long as the use also satisfies a qualitative standard of fairness established by the courts. The Report specifically expressed concern with the fair dealing exception as it relates to education, which, it states, has significantly damaged the market for educational authors and publishers.
- Patent: The Report expresses concerns with Canada’s patent regime including the limited duration, eligibility, and scope of protection in Canada’s patent system. Specifically, the Report notes that stakeholders have expressed concerns that Canada provides patent term extensions for “unreasonable patent office delays” and patent term extensions for “unreasonable marketing approval delays” in a concurrent manner.
- Trademark: The Report expresses concern with inadequate transparency and due process regarding GIs protected through free trade agreements.
Protecting IP Rights Under Existing Canadian Law and Practice
While the USTR identifies certain perceived shortcomings in the Canadian IP regime, there are mechanisms under Canadian law to address these issues and to ensure that IP owners have adequate protection.
Securing IP rights by developing internal policies to govern the ownership, management, registration, and use of IP, as well as employment and non-disclosure agreements helps to ensure that IP is protected from the moment of its creation, minimizes risk, and can maximize the value of a business.
In addition, watches can be set up to identify infringement proactively. In the digital age, ensuring that relevant online marketplaces are monitored and that consumers are educated about counterfeits can assist in minimizing the risk of infringement and allowing IP owners to take swift action when infringement is identified.
Registering and recording IP rights also provides owners with many benefits. For example, trademark registration grants additional rights and remedies that are not available for unregistered trademarks.
When rights are infringed, Canadian law provides a comprehensive legal framework for rights holders to take civil action and obtain remedies including damages, an accounting of profits, interlocutory and permanent injunctions and the destruction of counterfeit goods. In addition, both the Canadian Trademarks Act and the Copyright Act include criminal offence provisions,2 which provide additional remedies under Canadian law.
Developing the best legal strategy for protecting and enforcing legal rights in Canada requires careful planning that is tailored to each owner’s specific IP assets. Overall, existing Canadian law and practice provides timely and effective recourse for rights owners and Canada should be considered as part of all global IP strategies.
Key Takeaways
While Canada’s intellectual property regime could be improved in certain respects, there are numerous strategic tools already available in Canada’s existing laws and practice to allow IP owners to effectively enforce their IP rights.
Through careful and deliberate IP registration, drafting robust agreements, vigilant monitoring, and targeted enforcement actions, IP owners can proactively safeguard their assets and respond to infringement. A thorough understanding of existing Canadian laws and strategically leveraging the tools available under these laws will enable rights holders to navigate the complexities of Canadian IP protection and maintain their competitive advantage.
The Cassels Intellectual Property team has extensive experience protecting and enforcing patent, copyright, trademark, industrial design, trade secrets and confidential information. We also have one of the leading anti-counterfeiting and piracy enforcement practices in Canada. We would be pleased to speak with you if you would like to discuss any of the issues raised in the 2025 USTR Special 301 Report or to discuss strategies available under Canadian law and practice to adequately protect and enforce your IP rights.
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1 Copyright Act (R.S.C., 1985, c. C-42) at sections 29, 29.1, and 29.2.
2 Trademarks Act (R.S.C., 1985, c. T-13) at section 51.03; Copyright Act (R.S.C., 1985, c. C-42) at section 42(1).