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 here. The coalitions are listed here)

The discussion

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 three issues.

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 talks.

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 chairs:

• legal effects or consequences of registration, and participation in the register;

• notification and registration of terms in the register;

• 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 way

• the “territorial nature” of intellectual property rights should be preserved (ie, countries’ right to determine how to protect intellectual property within their own territories)

• 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 or divergence.

“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 bridged.

“In closing, let me once again wish you much success in your Chairmanship, including the stamina and determination to steer this group towards consensus.”

Background

Chairperson: Ambassador Darlington Mwape

Current proposals

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.