TWN Info Service on WTO and Trade Issues (Feb11/11)
23 February 2011
Third World Network

Draft text on GI register for wines and spirits takes shape
Published in SUNS #7089 dated 16 February 2011

Geneva, 15 Feb (Kanaga Raja) -- Two new sections have been added to an emerging draft text for setting up a multilateral register for Geographical Indications (GIs) for wines and spirits, with just two more sections and a preamble left to be completed.

The negotiations on the GI register are taking place in the Special Session of the TRIPS Council, which held an informal meeting on 11 February.

The draft text on the GI register is being assembled piece-by-piece in a small drafting group and is following a six-point sequence of elements, namely, notification, registration, legal effects/consequences of registration, fees and costs, special treatment for developing countries, and participation.

So far, the draft text already has two sections, i. e., notification and registration of GIs. The two new sections that have now been added are legal effects/consequences of registration and fees and costs, with the final two sections yet to be added being special treatment for developing countries and participation.

According to trade officials, the Chair, Ambassador Darlington Mwape of Zambia, informed the membership on 11 February that drafting sessions earlier in the week have added two new sections to the draft text on the proposed GI register for wines and spirits, leaving two more sections and a preamble before the full membership meets again in early March.

Some "small amendments" were made on the earlier section on "registration" during the week, said the Chair.

However, many square brackets remain, and the Chair said that he would open up the text to the full membership to work on the draft "once sufficient substance is on the table".

"Agreeing on what you disagree is already halfway to agreeing on what you agree," said Ambassador Mwape.

The drafting "continues to be fragile and delicate", he added. He urged Members "to give this process further time to stabilize". (See below for his report.)

According to trade officials, the main issue discussed at the informal meeting was a proposal by the European Union on the legal effect of registration -- that if one country registers a term, this would be "prima facie evidence" that in other countries, the term meets the definition of a geographical indication under the TRIPS Agreement, "in the absence of proof to the contrary".

The main difference, said trade officials, was over the weight of the "prima facie" evidence: whether it would create obligations in other countries' legal systems ("extraterritoriality"), shift the burden of proof away from the owner on whether a term qualifies as a geographical indication, and create large costs.

Members of the "joint proposal" group (Australia, Canada, the US, Mexico, Japan, South Africa and New Zealand) said that the drafting confirms their view that it would.

On the other hand, the EU and Switzerland were of the view that the system would not be extraterritorial because countries could still use their own legal systems to decide whether to protect the term.

The rights enshrined in the TRIPS Agreement would be respected, said Switzerland.

According to trade officials, the EU urged Members to examine how the approach would be applied in their own systems. It said that this would show that the fears about costs are not borne out.

In his remarks at the informal meeting on 11 February, the Chair reported on the progress made in the drafting group earlier in the week. He said that the drafting group began by briefly revisiting the section on registration in the draft composite text to see whether more text could be streamlined there.

After small amendments there, he added, the group moved on to the draft composite text on the next two elements of his list, which had been prepared on the basis of the textual proposals Members had submitted by the deadline of 2 February that he had announced at the last open-ended meeting.

In discussing the element of legal effects/consequences of registration, which the Chair said is one of the key areas where fundamental differences remain, Members had detailed exchanges on the exact operation of the system as proposed by the different groups.

The Chair said that it was his impression that the merit of discussing the operation of the Register on the basis of textual proposals was most evident in these discussions.

Members were able to identify their different views and interpretations in relation to concrete parts of the text, and although not all of this thinking process is reflected in the current document, "I sense that the differences are beginning to crystallize around a number of identifiable formulations."

"As you know - agreeing on what you disagree is already half way to agreeing on what you agree. In that light, I feel that the work of the drafting group on that element has been constructive and I continue to be optimistic regarding our itinerary on the road towards our mandated outcome on a Multilateral Register for Geographical Indications for Wines and Spirits," said the Chair.

The Chair noted that Members also had a detailed discussion on the element of fees and costs that has brought a little more clarity on the relevance of this part and its interdependence with other parts of the text.

With regard to the drafting group's paper, the Chair reiterated that firstly, the composite text has emanated exclusively from Members themselves, and not from the Chair, and secondly, that the composite text represents work in progress and is without prejudice to Members' positions on the overall outcome of the negotiations.

"I would also like to make my usual plea that - as this process continues to be fragile and delicate - all Members to give this process further time to stabilize," the Chair stressed.

The Chair also spelled out the "rules of the road" for the next session, namely, that a draft composite text for the elements that will be taken up for the first time at the next session will be prepared on the basis of Members' textual proposals that are submitted by the set deadline.

With regard to the deadline, the Chair suggested that in order to keep the process moving forward, "and in view of the little time we have left before the formal meeting of 3 March", a draft composite text for the next two elements, namely, Special and Differential Treatment and Participation, as well as on preambular text, will be prepared on the basis of proposals that delegations send in by Friday, 18 February 2011.

The Chair pointed out that the next round of drafting group sessions is scheduled for 24 and 25 February, and that a formal meeting of the TRIPS Council in Special Session is scheduled for 3 March, and will be followed by informal consultations on 4 March.

Meanwhile, in other ongoing negotiations in the various negotiating groups at the WTO, the Chair of the Negotiating Group on Rules reported on the plurilateral sessions on fisheries subsidies that was held last week.

At an informal meeting of the Rules Group on 14 February, Ambassador Dennis Francis of Trinidad and Tobago said that the sessions discussed the following:

-- a proposal from the Small Vulnerable Economies (TN/RL/GEN/162) on additional flexibilities for the SVEs;

-- a proposal from Japan (TN/RL/GEN/171) on fisheries subsidies disciplines;

-- a proposal from Morocco (TN/RL/GEN/170) on special and differential treatment for developing countries;

-- a proposal from Canada (TN/RL/GEN/156/Rev. 1) on de minimis exemption;

-- a proposal from Argentina, Chile, Egypt and Uruguay (TN/RL/GEN/173/Rev. 1) on special and differential treatment; and

-- a proposal from Ecuador and Peru (TN/RL/GEN/172) on special and differential treatment in relation to artisanal fishing.

The Chair had further invited heads of delegation to a plurilateral session on fuel subsidies for fisheries. In addition, the "Friends of the Chair" are now working on the issue of fisheries management.

According to trade officials, the Chair said that the meetings last week were useful and encouraging. While major differences remain, he said that he detected hints of progress on certain issues.

The Chair envisaged establishing contact groups on certain fisheries subsidies issues, similar to that in the area of anti-dumping.

According to trade officials, the Chair informed the membership that the next cluster of meetings on fisheries subsidies will be held in the week of 7 March.

He urged delegations to work with each other to build on last week's discussions. +