| The
TRIPS Council also started preparations for a review of a
provision (Article 27.3(b)) of the TRIPS Agreement that
allows countries to exempt certain plant or animal
inventions from patentability. And
it took first steps to prepare its contribution to WTO
work on electronic commerce and trade facilitation.
Geographical
indications
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The
EU’s proposal comes under an article (23.4) of the
TRIPS Agreement which says WTO members will negotiate a
multilateral system for notifying and registering
protected geographical indications for wines. (The
article does not deal with the separate issue of
negotiating enhanced protection for geographical
indications.)
It
proposes including spirits, with the possibility of
adding other products at a later stage. Participation
(submitting names for registration) would be voluntary.
However, products accepted for registration would be
protected in all WTO member countries, although the
method each country uses would follow its existing
practice — there would be no need to change
countries’ laws, the EU says.
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Existing
laws: vastly different approaches
Countries
differ considerably in the way their laws handle
geographical indications. This is reflected in responses
from countries now implementing the TRIPS Agreement
— mainly developed countries — to a WTO
questionnaire.
Some
have specific geographical indications laws. Others use
trademark law, consumer protection law, marketing law or
common law or combinations of these.
Some
have formal lists of registered geographical indications.
Others do not, preferring to rely on court case histories
(based on criteria such as consumer protection) to
identify where problems have arisen and been sorted out.
Some
only recognize place names. Others accept other names
that are associated with a place.
As
a result, the criteria for providing protection also
differ.
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| Countries
could oppose registration, for example on the grounds
that the name in question is used so commonly that it has
become a generic term. Only countries successfully
opposing registration would be exempt from having to
protect the geographical indication, the EU’s
proposal says. The
purpose is "transparency and clarity", the EU
stressed. The debate covered the following issues:
Scope
— wines alone, or spirits and other products as
well?
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In
the meeting, a number of countries cautioned against
being over-ambitious. They included the United States,
Australia, Japan, Republic of Korea, Canada, Chile and
Hong Kong.
Some
said the new multilateral system should not increase
countries’ burdens and obligations, pointing out
that under the EU’s proposal each country would have
to scrutinize every name submitted for registration.
Others emphasized the fact that the agreement only
obliges countries to negotiate a system for wines.
Countries
in favour of including other products included Iceland
(for fish), Czech Republic, Morocco (food and
handicrafts), India (expressing in general, a
"strong interest"), Venezuela (crafts and
industrial products), Cuba (agricultural and other
products), Turkey and Nigeria.
Voluntary
participation:
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Art
23.4 speaks of voluntary participation. Some countries
questioned whether the EU’s interpretation of
"voluntary" is correct when all WTO members
would be required to protect names accepted for
registration.
Administration
and disputes:
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Several
countries wanted to know more about these, for example
who would judge whether a name can be registered and
whether disputes would be handled in the WTO’s
Dispute Settlement Body. The EU said these and other
details would have to be worked out as discussions about
the proposal progress.
The
United States said it would shortly table its own
proposal.
Plant
and animal inventions (Article 27.3b)
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The
provisions of the TRIPS Agreement allow certain plant and
animal inventions (except, for example, microorganisms)
to be exempt from patent protection. However, plant
varieties have to be protected either by patent or by a
special (sui generis) law. These provisions are
due for review next year (1999).
The
TRIPS Council is now starting its initial, fact-finding
step. The chairman, Ambassador István Major of Hungary,
concluded that the meeting had decided — subject to
confirmation by one developing country — that:
members
already under obligation to apply the provisions should
be asked to provide information on how they are doing
this,
- those
not under obligation could also supply
information voluntarily,
- the
Secretariat should supply an “illustrative
list” of questions for these, and
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What
products?
Examples
of some geographical indications that are protected in
some developed countries:Bulgaria
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local appellations of origin registered, e.g. Bulgarian
yoghurt, Traminer from Khan Kroum (wine), Merlou from
Sakar (wine)
Canada
Canadian
Rye Whisky, Canadian Whisky, Fraser Valley, Okanagan
Valley, Similkameen Valley, Vancouver Island
Czech
Republic
Beers:
Pilsen, Budweis
Others:
various vines, liqueurs, Saaz hops, Auscha hops, Jablonec
jewellery, Bohemia crystal, Vamberk lace
European
Union
Wines:
Champagne,
Sherry, Porto, Chianti, Samos, Rheinhessen, Moselle
Luxembourgeoise, Mittleburgenland
Spirits:
Cognac,
Brandy de Jerez, Grappa di Barolo, Berliner Kümmel,
Geničvre Flandres Artois, Scotch Whisky, Irish Whiskey,
Tsikoudia (from Crete)
Other
products: Newcastle
brown ale, Kentish ale, Kentish strong ale, Rutland
bitter, Gloucestershire/Herefordshire/Worcestershire
cider/perry, Scottish beef, Orkney beef, Orkney lamb,
Jersey Royal potatoes, Cornish Clotted Cream, Cabrales,
Roquefort, Gorgonzola, Aziete de Moura, Olive de
Kalamata, Opperdoezer Ronde, Wachauer Marille, Danablu,
Lübecker Marzipan, Svecia, Queijo do Pico, Coquille
Saint-Jacques des Côtes-d’Amour, Jamón de Huelva,
Lammefjordsgulerod
Hungary
Eger
(wine), Szatmar (plum)
Liechtenstein
Malbuner
(meat products), Balzer (Hi-tech products)
Slovak
Republic
Korytnická
minerálna voda (mineral water), Karpatská perla (wine),
Modranská majolika (hand-painted pottery),
Piešt’anské bahno (healing mud)
United
States
Idaho,
(potatoes and onions), Real California Cheese, Napa
Valley Reserve (still and sparkling wines), Pride of New
York (agricultural products), Ohio River Valley
(viticulture area)
Source:
members’ replies to questionnaire
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Pharmaceuticals
and agricultural chemicals (Arts. 70.8 and 70.9)
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The
issue here is how countries are applying the
"mailbox" and exclusive marketing rights
provisions (Arts. 70.8 and 70.9) for pharmaceuticals and
agricultural chemicals.
The
US has distributed a set of questions addressed to
Argentina, Egypt, Paraguay and Uruguay.
Incentives
for technology transfer to LDCs(Art. 66.2)
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Article
66.2 of the TRIPS Agreement says developed countries must
provide incentives for their enterprises and institutions
to transfer technology to least developed countries
(LDCs) in order to enable these countries "to create
a sound and viable technological base".
Haiti,
speaking as "the only least developed country in the
Americas" asked how developed countries are
fulfilling their obligation. Venezuela, Morocco, Pakistan
and the Philippines supported Haiti.
The
council agreed that Haiti’s question should be
circulated informally and that developed countries should
be invited to reply.
Non-violation
complaints
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GATT
provisions allow countries to use raise a complaint in
the WTO Dispute Settlement Body if they think their
rights have been impaired, even if an agreement has not
been violated.
Under
the TRIPS Agreement, non-violation complaints are not
allowed until the end of 1999. Some countries want this
moratorium extended.
Korea,
Canada and India spoke in favour of extending it. Japan
and the United States said it should lapse. ASEAN
(through the Philippines) said they were not ready to
state their position.
The
Secretariat will prepare a factual note on this issue and
the discussions will continue at the next meeting.
Electronic
commerce
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The
council began preparations to report on electronic
commerce issues related to TRIPS to the General Council
in July.
A
representative of the World
Intellectual Property Organization
described work in WIPO on electronic commerce and the
separate but linked issue of intellectual property in
digital form.
The
TRIPS Council agreed that the Secretariat should compile
information on TRIPS provisions relevant to electronic
commerce, and on relevant activities in other
international organizations. The issue will be discussed
again at the next meeting.
Other
topics discussed
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The
council began preparations to report on trade
facilitation to the Goods Council in March, again
focusing on issues related to TRIPS.
Canada
and the EU exchanged comment on their disputes
in the WTO
over pharmaceutical patents.
The
EU and US said they were close to settling their dispute
over Swedish enforcement legislation — the US said
it understands that under new Swedish law, from 1 January
1999 courts can authorize searches for pirated material
and documents without having to give advance warning to
the people suspected of piracy.
The
next meeting will be in February.
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"Mailbox"
and "exclusive marketing rights" If
a developing country did not provide product patent
protection in a particular area of technology when the
TRIPS Agreement came into force (1 January 1995), it has
up to 10 years to introduce the protection.
But
for pharmaceutical and agricultural chemical products,
the country must accept the filing of patent applications
(provide a "mailbox") from the beginning of the
transitional period, though the patent need not be
granted until after the end of this period.
If
the government allows the relevant pharmaceutical or
agricultural chemical to be marketed during the
transition period, it must — subject to certain
conditions — provide an exclusive marketing right
for the product for five years, or until a product patent
is granted, whichever is shorter.
The
TRIPS Agreement requires patent protection to last for at
least 20 years from the time the application was filed.
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