Also
on the agenda were the present rules dealing with the
protection of animal and plant inventions, technology
transfer for least developed countries, intellectual
property issues raised by "trade facilitation"
and electronic commerce, "non-violation"
provisions in the TRIPS Agreement and other subjects.Geographical
indications Back
to top
 The
US-Japanese joint proposal on a multilateral system for
notifying and registering geographical indications (see
box)
is the second to be submitted to the TRIPS Council. The
first, discussed at previous
meetings,
came from the European Union.
| Geographical
indications … …
the use of place names, or words associated with
a place, to identify the origin, type and quality
of a product.
The
proposals being discussed under Article 23.4 of
the TRIPS Agreement are for a multilateral system
for notifying and registering protected
geographical indications for wines and spirits.
Some countries want the system to cover only
wines, some say it should be extended to include
other products.
Article
23.4, the basis for these proposals, does not
deal with the separate issue of negotiating
enhanced protection for geographical indications.
|
The
proposal: The new proposal says countries’
participation in the system would be voluntary. They
would tell the WTO which geographical indications they
are protecting domestically. For each of these they would
explain what the terms of protection are under their laws
— for example whether there is an expiry date, and
if so when — and whether the protection comes under
an international agreement.
The
WTO would publish a list of these reported geographical
indications together with relevant details. When WTO
member countries consider registering geographical
indications domestically, they would agree "to refer
to" the multilateral list. Domestic decisions on
providing protection for the listed geographical
indications would take into account the fact that they
were on the list — some countries’ laws might
say how geographical indications on the multilateral list
should be treated.
If
anyone wants to challenge the protection given to a
geographical indication in a particular country, the
challenge would have to be made within that
country’s domestic system, according to the US-Japan
proposal.
Background
— EU proposal: Under the EU’s proposal,
participation — submitting names for registration
— would also 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 for a substantial change in countries’ laws.
The
EU’s proposal says 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, it says.
Support
for new proposal — ‘TRIPS-plus?’: The
United States and Japan described their joint proposal as
one that imposes no new obligations, burdens or costs on
members and only place a minimal burden on the WTO
Secretariat. The proposed system would also take account
of the wide range of different methods countries use to
protect geographical indications.
Canada,
Australia, Argentina, Brazil, New Zealand, Bolivia and
Chile were among the countries supporting approach of the
new proposal on these grounds. Some described it as not
being "TRIPS-plus". They and other speakers
stressed that they had only just received the proposal
and needed more time to look at the details.
New
Zealand, Chile and the Rep of Korea said that the
proposed system should not be extended to spirits.
Venezuela, Mexico, India, Switzerland, Cuba, Egypt, South
Africa, Malaysia, Indonesia, the Philippines and Thailand
said they preferred to see other products included in
addition to wines and spirits.
EU
comment and support — ‘value-added?’: The
European Union said that its own proposal meets all the
criteria highlighted by the US and Japan. It commented
that the US-Japan proposal amounts to little more than
the creation of a database that would contribute little
to task the protection of geographical indications.
Some
countries said that so far they prefer the EU proposal
because it offers "added value" to the present
situation. Several others — India, Cuba, South
Africa, etc — said they saw merit in both proposals.
South Africa added that the two proposals are not
mutually exclusive.
Conclusion:
The TRIPS Council will continue to discuss this issue at
its next meeting in April. Two countries said they were
preparing their own proposals. (The council also
continued to review the application of provisions in the
TRIPS Agreement dealing with geographical indications,
with countries continuing supplying written descriptions
of the way they handle geographical indications in their
domestic laws. This work comes under Article 24.2 of the
agreement.)
Plant
and animal inventions (Article 27.3b) Back
to top
 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
being reviewed this year (1999).
WTO
members have started replying to a list of questions on
how plant and animal inventions are handled in their
domestic laws. They include Bulgaria, Canada, the Czech
Republic, the EU and its members, Hungary, Japan, Rep of
Korea, New Zealand, Poland, Romania, Slovenia, the United
States and Zambia. Some told the Council that they would
reply shortly.
The
Secretariat will prepare a structured summary overview of
the replies for the next meeting.
Non-violation
complaints Back
to top
Discussion
continued on provisions which temporarily prevent
countries from citing "non-violation"
grievances in disputes involving the TRIPS Agreement.
What
is non-violation? Under normal GATT rules, countries can
raise a complaint in the WTO Dispute Settlement Body if
they think benefits that should accrue to them have been
impaired, even if an agreement has not been violated.
Under
the TRIPS Agreement (Article 64.3), non-violation
complaints are not allowed until the end of 1999. In
other words, countries can only bring a TRIPS issue to
the WTO dispute process if they think the TRIPS Agreement
has actually been violated.
The
debate: Some countries want this moratorium extended.
Others, including the United States, want non-violation
grievances on intellectual property to be allowed.
The
TRIPS Council discussed a Secretariat paper looking at
the way dispute rulings under the WTO (and before that,
GATT) have treated non-violation issues, the negotiating
history of the provisions in the TRIPS Agreement, and how
the non-violation idea is handled elsewhere.
It
also discussed a Canadian paper which objects to an end
to the moratorium. Canada argues that allowing
non-violation complaints would increase uncertainty and
deter WTO members from introducing new and perhaps vital
social, economic development, health, environmental and
cultural measures.
One
of Canada’s reasons behind this conclusion is what
it considers to be "ill-defined benefits" of
intellectual property protection under the TRIPS
Agreement. In order to justify a non-violation complaint,
the complaining country would have to argue that it is
being deprived of some benefits. Canada argues that
although countries agree that intellectual property
protection is beneficial, they differ considerably in how
they define the benefits.
The
discussions will continue at the next meeting.
Other
subjects Back
to top
Among
the other subjects discussed were:
- how
countries are applying the
"mailbox" and exclusive marketing
rights provisions (Arts. 70.8 and 70.9) for
pharmaceuticals and agricultural chemicals;
- incentives
for technology transfer to least developed
countries as required under Article 66.2 of
the TRIPS Agreement;
- the
TRIPS Council’s reports on electronic
commerce and trade facilitation to be
submitted in the next few months to the
General Council — members will continue
to discuss electronic commerce in future
meetings;
- technical
cooperation, including work under the joint
WTO-WIPO
programme to help developing countries which
have to comply with the TRIPS Agreement by 1
January 2000;
- The
council agreed to review at the end of this
year, the national laws implementing
intellectual property rights under the TRIPS
Agreement of the two new WTO members, Kyrgyz
Republic and Latvia. Consultations are
continuing on the procedures for similar
reviews of developing countries’ laws
which have to comply with the TRIPS Agreement
from 1 January 2000.
This
was the first meeting of the TRIPS Council in 1999. At
the end, the council elected Ambassador Carlos Pérez del
Castillo of Uruguay as its new chairman for 1999,
replacing Ambassador István Major of Hungary. (Amb.
Pérez del Castillo chaired the meeting on Amb
Major’s behalf.)
The
next meeting will be in April.
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