TWN Info Service on WTO and Trade Issues (Feb10/07)
17 February 2010
Third World Network

Talks on GI register should focus on "practical" issues
Published in SUNS #6859 dated 9 February 2010

Geneva, 8 Feb (Kanaga Raja) -- The ongoing negotiations on a multilateral register of geographical indications (GI) for wines and spirits should avoid "rhetorical" debates and should instead focus on "practical" issues.

This was agreed to by Members at an informal meeting of the Special Session of the TRIPS Council on Friday.

According to trade officials, there were however differences over what exactly this would mean in practice.

The negotiations are being chaired temporarily by Ambassador Karen Tan of Singapore, following the departure of previous Chair Ambassador Trevor Clarke of Barbados, who has joined the World Intellectual Property Organization.

According to trade officials, the "joint proposal" group (TN/IP/W/10/Rev. 2) that includes Argentina, Australia, New Zealand, Canada, the US, Japan, Korea, Honduras, Dominican Republic and others, called on Members to follow Canada's earlier example of describing how their domestic systems would deal with the proposed register.

(Document TN/IP/W/10/Rev. 2 proposes the establishment of a multilateral register of GIs for wines and spirits that facilitates the protection of wines and spirits GIs through a system that is voluntary. According to the document, registration of the notified GI will be undertaken on a Database of Geographical Indications for Wines and Spirits, and that such a database shall be searchable on-line, free-of-charge and accessible to all WTO Members and the public. Members who choose not to participate are encouraged, but are not obliged, to consult the Database in making decisions under their domestic law involving registration or protection of trademarks and GIs for wines and spirits.)

On the other hand, a coalition of some 100 Members (TN/C/W/52, co-sponsored by Brazil, China, the EC, India, Indonesia, Pakistan, Peru, Switzerland, Thailand, the ACP Group and the African Group) preferred to focus on the major differences between the two sides: the legal effect of registering a term, and to a lesser extent, who would participate in the system, said trade officials.

(TN/C/W/52 proposes that Members agree to establish a register open to geographical indications for wines and spirits protected by any of the WTO Members as per TRIPS. Following receipt of a notification of a GI, the WTO Secretariat shall register the notified GI on the register. The elements of the notification will be agreed, says the document. In the framework of these procedures, and in the absence of proof to the contrary in the course of these, the Register shall be considered as a prima facie evidence that, in that Member, the registered GI meets the definition of "geographical indication" laid down in TRIPS Article 22.1. The document also calls for parallel discussions on extension of GIs beyond wines and spirits and the TRIPS/CBD disclosure issue.)

According to trade officials, the EU said that it would favour looking at how the system would be implemented in practice in domestic systems provided the examination was based on the TN/C/W/52.

Members also broadly agreed that the discussions should continue to be based on the "clusters of issues" as identified by the previous Chair, Ambassador Clarke of Barbados (in his final report last November).

According to trade officials, Members accepted the five "guiding principles for future work" that he outlined in his final report (document TN/IP/19).

In his final report, Ambassador Clarke proposed that future work should be guided by the following principles:

"(i) The purpose of the Register is to facilitate, not to increase, the protection of GIs for wines and spirits.

The establishment of the Register is intended to facilitate, rather than to increase, the level of substantive protection, which exists under the TRIPS Agreement. At the same time, it seems reasonable to expect that "facilitation" would make obtaining such protection easier. It is also clear that the Register is intended to facilitate protection of wine and spirit GIs, not only the examination process. In my view, Members' negotiations should focus on the crucial question of what are acceptable means of facilitating achievement of the existing level of protection, while ensuring that the substantive level of protection remains the same.

(ii) The Register should be useful and meaningful to both notifying Members and consulting Members.

The Register should be an accurate, reliable and authentic source of information. The primary responsibility for providing such information to the Register should rest with the notifying Member. It should also be explored how the nature and quality of the information on the system may influence the manner in which Members may take this information into account in their domestic legal systems.

(iii) The territorial nature of intellectual property rights should be preserved.

The territorial nature of intellectual property rights embodies the accepted view that intellectual property rights are valid only in the territory for which they have been established or granted. While this concept is not questioned by Members in these negotiations, the question is whether and under what circumstances Country A is prepared to give recognition to a protected GI from Country B, or recognize the facts that gave rise to such protection in Country B. Such recognition of legal or factual elements from another jurisdiction is practised under various international agreements and is the consequence of a sovereign decision by countries to do so.

(iv) The Register should not impose undue financial and administrative burdens on Members.

With respect to financial and administrative burdens, Members seem to accept that some financial and administrative burden may be necessary to fulfil the mandate, but that it should as much as possible be proportionate to the use and benefits of the Register.

(v) Special and differential treatment should be precise, effective and operational.

Special and differential treatment should be provided through precise and effective provisions targeting developing and least-developed countries, including those that wish to benefit from participating in the system."

According to trade officials, some developing countries said that special treatment for developing countries should be given a higher priority in the discussions, and should not be left until after the main principles have been sorted out.

The next formal meeting of the TRIPS Council Special Session is scheduled for 4 March. +