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> More on geographical indications
> TRIPS news
This was a meeting of the “special session” of the
WTO’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) Council,
which is the forum for negotiating the geographical indications register within
the Doha Round. Chairperson Darlington Mwape, who is Zambia’s ambassador, took
over from interim chairperson Ambassador Karen Tan of Singapore.
(The issue is explained here and
coalitions are listed here)
The EU, Switzerland and others said they had
compromised in order to reach agreement among over 100 members to support the
three-issue document TN/C/W/52 and had explained their modified proposal
at length. They called on the other side (the “Joint Proposal” group) to make
matching compromises and a revised proposal.
Some in this group stressed that progress in these negotiations depended on
progress on the other two issues: TRIPS and the Convention on Biological
Diversity, and “GI extension”.
A number of developing countries called for clear and effective provisions on
special treatment for developing countries. Some said the special treatment
should be discussed now. Others said it should be left until after “modalities”
have been agreed and a clearer picture can be seen.
The Joint Proposal Group (New Zealand, Australia, US, Canada, Argentina, Chile,
etc) continued to press for members to examine how various proposals would be
implemented within each country and to oppose the “parallel” discussion of the
Hong Kong, China, which has a third middle-ground ground proposal also explained
how its version would work in practice.
Chairperson Mwape said he would consult members as he prepares his report for
the Doha Round “stock-taking exercise” at the end of March, when senior
officials from capitals will be in Geneva to assess the overall situation in the
Ambassador Mwape also said he had consulted the three groups before the meeting:
the supporters of TN/C/W/52, the Joint Proposal group, and Hong Kong, China.
Three, four, five … Go!
Ambassador Mwape was given the go-ahead for his 3-4-5
process. This uses ideas developed under previous chairs including Ambassador
Trevor Clarke of Barbados who asked members some questions and circulated a
report before he left the chairmanship in November 2009. Ambassador Clarke’s
final report is document TN/IP/19.
Three — clusters of issues identified by previous
legal effects or consequences of registration, and
participation in the register;
notification and registration of terms in the
other issues, such as fees, costs, administrative and
other burdens, in particular for developing countries and least developed
countries, and special and differential treatment.
Four — questions:
“What legal obligations would be acceptable for the
Register to facilitate the protection of geographical indications for wines and
spirits, as mandated by Article 23.4 of the TRIPS Agreement?”
“When making decisions regarding the registration and protection of trademarks
and geographical indications, what significance and weight should national
authorities give to the information on the Register?”
“Are there any options regarding participation, other than voluntary and
mandatory participation? If so, what criteria could be envisaged?”
“What form could special and differential treatment [for developing and least
developed countries] take with regard to the Register?”
Five — principles for future work
These were identified in paragraph 16 of Ambassador Clarke’s report (TN/IP/19),
to guide the discussions:
the register’s purpose is to “facilitate” protection for wines and spirits,
not to increase protection
the register should be useful and meaningful to participating members in some
the “territorial nature” of intellectual property rights should be preserved (ie,
countries’ right to determine how to protect intellectual property within their
the register should not be too burdensome financially and administratively
developing countries should be given special treatment that is “precise,
effective and operational”.
Ambassador Karen Tan’s report
Meanwhile, outgoing chairperson Karen Tan reported to the new chair and the
members on her consultations:
“Let me first congratulate you on your election as Chair of this negotiating
group. As I know from my brief experience that taking on this task is not for
the faint-hearted, I am fully confident that you will lead the TRIPS Special
Session with the necessary level of energy and engagement, and I can assure you
of Singapore’s continued support in your efforts.
“I would like to take this opportunity to put on record my impressions from the
informal consultations I have held as pro tempore Chair of the TRIPS Special
Session since December 2009 until your election. During that time I have held
two sets of informal consultations with the groups sponsoring the Joint Proposal
(TN/IP/W/10/Rev.2) and the Modalities Proposal (TN/IP/W/52), as well as with Hong
Kong, China, on 16 December 2009 and on 4 February 2010, respectively. To ensure
transparency and to report to the wider Membership on these consultations, I
also held an open-ended informal meeting of the TRIPS Special Session on 5
February 2010. My remarks today largely reflect the views I shared with Members
at that meeting.
“As an overall assessment, although the fundamental positions of delegations
have not changed, it was my sense that there is a genuine and sincere desire on
the part of delegations to move forward and resolve the remaining differences in
these negotiations, so as to be ready to contribute to any movements in the
wider context of the Doha Round negotiations.
“More specifically, I noted that Members appreciated the report of Ambassador
Trevor Clarke made in TN/IP/19 as a fair and balanced reflection of the state of
play and of remaining challenges, in particular in the two key areas of legal
effects and participation, even if some points and suggestions were not shared
by all delegations. With regard to the five “Guiding Principles for Future Work”
in Part C of the report on “The Way Forward”, I noted a general agreement that
these principles were useful for our future discussions. Individual principles
enjoy different levels of Members’ enthusiasm, some delegations have highlighted
particular concerns and there are finely nuanced views on what role they should
play in the future work of this negotiating group. It seems, nonetheless, clear
that they represent a succinct crystallisation of both common ground and
remaining differences in these negotiations, even though there is no suggestion
that they should form the basis of negotiations.
“As regards the structure of future work, there is a widespread view among
delegations that the discussion should avoid rhetorical debates and follow a
practical approach, focusing in part on concrete practical examples and concerns
regarding the implementation of each proposal at the national level. To this
end, several delegations indicated their willingness to make or develop case
studies, examples and scenarios regarding the implementation of the different
proposals into national law.
“It was evident that the method to structure the discussion by the clusters of
issues identified by my predecessors is well accepted by Members, and that the
list of questions posed by Ambassador Clarke as Chair had been successful in
further focusing the discussion among Members on critical areas of convergence
“It was my own view that in terms of structuring the future discussions in this
negotiating group, merit lay in utilizing all the elements that had been
developed and already used to ensure that none of the work done hitherto would
be lost, that discussions among Members move forward rather than repeat existing
positions, and that the gaps identified between Members could eventually be
“In closing, let me once again wish you much success in your Chairmanship,
including the stamina and determination to steer this group towards consensus.”
Ambassador Darlington Mwape
Three alternatives are currently on the table:
The Joint Proposal TN/IP/W/10/Rev.2 from Argentina, Australia, Canada,
Chile, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala,
Honduras, Japan, Rep.Korea, Mexico, New Zealand, Nicaragua, Paraguay,
Chinese Taipei, South Africa, the US. This envisages the register as a
database. Members would choose whether or not to participate in the
register. The intellectual property authorities of participating members
would consult the database when considering protection for individual
trademarks or geographical indications within their countries.
TN/C/W/52 of 19 July 2008, from over 100 WTO members, which includes a
modified and stripped-down version of the EU’s original proposal for the
multilateral register. It is now in the form of proposed “modalities” or
a blueprint of the final outcome, with details to be negotiated later.
Described as a negotiated compromise among the sponsors, the proposal
envisages a system applying to all members although members could choose
whether or not to register their own geographical indications.
All members would have to take a term’s registration “into account” and
treat it as “prima facie” evidence (first sight, or preliminary, before
further investigation) that the term meets the definition of a
geographical indication. Further procedures for that term within each
country would be handled entirely within the country’s domestic legal
system. These include confirmation that the term is an eligible
geographical indication, possible challenges, and whether it is subject
to exceptions such as because the term is generic.
(Previously the EU had proposed that if a term is registered the
assumption — the legal phrase is “irrebuttable presumption” — would be
that it should be protected in all WTO members except those that have
successfully challenged the term.)
Opponents of this proposal also object to the link with two other
intellectual property issues: “extending” to all products the enhanced
protection currently given to wines and spirits; and requiring patent
applicants to disclose the origin of genetic materials and related
traditional knowledge used in their inventions.
TN/IP/W/8 from Hong Kong, China: if a term is registered, this would
be preliminary (“prima facie”) evidence — which could be rebutted —
about who owns the term, that it is protected in the country of origin,
etc, but only in those countries choosing to participate in the system.
Hong Kong, China also proposes an initial period of four years for this
system followed by a review.
• geographical indications (GIs): Place names (or
words associated with a place) used to identify products
(for example, “Champagne”, “Tequila” or “Roquefort”) which
have a particular quality, reputation or other
characteristic because they come from that place.
• modalities: The way or method of doing something
— in the Doha Development Agenda negotiations these are
blueprints for the final deal, eg, how to cut tariffs, and
reduce agricultural subsidies and support, along with
flexibilities to deal with various sensitivities. Once the
modalities have been agreed, countries can apply the
formulas to tariffs on thousands of products and to
various support programmes.
• special sessions: meetings of WTO councils and
committees focusing only on the Doha Development Agenda
• TRIPS: Trade-related aspects of intellectual
> More jargon:
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