WTO: 2011 NEWS ITEMS

INTELLECTUAL PROPERTY: GEOGRAPHICAL INDICATIONS NEGOTIATIONS — FORMAL MEETING

NOTE:
THIS NEWS STORY is designed to help the public understand developments in the WTO. While every effort has been made to ensure the contents are accurate, it does not prejudice member governments’ positions.

The official record is in the meeting’s minutes.

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MINUTES:

Several members noted that this represents a swift result after 13 years of talks that have seen a lot of views exchanged but little movement in positions.

But they said the real challenge still lies ahead — negotiating to narrow down differences and remove the square brackets, which average almost 30 pairs per side in the seven central pages. And chairperson Darlington Mwape described the ongoing drafting as “fragile and delicate” and the text as “work in progress”.

“One can easily see the ‘work’, but I’m a bit doubtful about the ‘progress’,” an Indian delegate commented.

As before, Amb.Mwape promised to involve the full membership in the negotiation and the drafting, but only “once sufficient substance is on the table. Looking at the number of square brackets in the current text, I believe we are not quite yet in a situation where this would be constructive.” He added that he hopes for broader participation before Easter (late April). (An excerpt from his oral report is below).

In the meantime he is relying on representatives of the various coalitions to keep their groups informed and to reflect their views in the drafting.

Geographical indications are place names or sometimes words associated with a place used to identify products having a particular quality, reputation or other characteristic because they come from that place.

A single text — rather than rival documents — is an essential tool to allow negotiators to narrow down their differences more practically. Members broadly appreciated the process and several said the text can be a basis for moving ahead. Amb.Mwape repeated his assurance that the text came entirely from the members.

Special and differential treatment, and finance. New in the discussion — and in the text — are details of proposed special treatment for developing and least-developed countries. This would include delays in implementing the system and technical assistance from developed countries.

A key difference is over the delays — the “transition periods”. Some developing countries in the “W/52” group (ie those in a larger group, which includes the EU, Switzerland, India, Brazil, China, etc) propose developing countries be given 10 years after the system comes into being before they have to consult terms in the register, and 20 years for least-developed countries.

The “Joint-Proposal” group (Australia, Canada, Chile, US, Mexico, Japan, South Africa, New Zealand, etc) bases its suggested transition periods on the totally voluntary form it is proposing for the system — the delays, at this stage unspecified numbers of years, would start from when a developing or least-developed country volunteers to participate in the system.

Also new in the text is a section on costs and fees, with views differing on whether the cost should be borne by the WTO’s budget — meaning all members would fund the system — or whether “user fees” should be charged to countries registering terms.

Unchanged positions. Statements will appear in minutes because this was a formal meeting, unlike previous meetings this year. Members took the opportunity to restate their positions for the record:

  • legal effects or consequences and whether the proposal of the EU and its allies would be “extra-territorial” (registration by one country creating obligations in other countries’ legal systems) and shift the burden of proof for example on whether a term is eligible for protection in other countries
  • participation — whether this would be entirely voluntary or, as the EU put it, countries would choose whether or not to register a term but would be obliged to consult the register; and whether allowing countries to opt out of the system entirely conforms with the “multilateral” description in the mandate
  • wines and spirits or more? The Joint-Proposal group and some others say there is no mandate to extend the system to other products and to link these talks to two other topics — extending to other products the higher level of protection now given to wines and spirits (“GI extension”) and a proposal to require patent applicants to disclose the origin of genetic resources used in their inventions (“disclosure”). China and Kenya were among countries insisting that the multilateral register must not discriminate in favour of wines and spirits. 

The continued discussion on this last point meant a plea from the chairperson went almost unheard. However, interventions were kept relatively low-key on both sides.

“In view of past experience, let me remind delegations that the mandate in this forum is for negotiations on the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits,” Amb.Mwape had said.

“Despite my having received repeated assurances from all sides that this would be respected, we have still spent considerable time [in the drafting group] talking about whether or not the composite text should be neutral with respect to possible GI extension or not, and I must say that this has not been to my liking.”

The Joint-Proposal group circulated a revision of its proposal, adding a section on special treatment for developing countries, aligning the formatting with the structure of the draft and using its preferred wording from the composite draft. This will soon be available publicly as TN/IP/W/10/Rev.3 (coming soon).

The W/52 group said it is also coordinating to produce a common text, but that this will take some time because of the group’s size and because it wants to prepare texts on GI extension and patent disclosure as well.
  

Background: the 2011 target

Geographical indications are place names — or words associated with a place — used to identify products having a particular quality, reputation or other characteristic because they come from that place. Negotiations on the proposed multilateral register for wines and spirits began in 1997, under Art.23.4 of the WTO intellectual property agreement (TRIPS) and were included in the Doha Round when it was launched in 2001.

The six main areas covered are:

  • notification — eg, how a term would be notified and which member would do it (also related to “participation”)
  • registration — eg, how the system would be run and the WTO Secretariat’s role
  • legal effects/consequences of registration, in particular any commitments or obligations on members arising from a term’s registration (also related to “participation”)
  • fees and costs — including who would bear these burdens
  • special treatment for developing countries (officially, “special and differential treatment”)
  • participation — whether the system is entirely voluntary, or whether a term’s registration would have some implications for all WTO members.

Amb.Mwape has identified legal effects or consequences, and participation, as the most difficult of the six.

 

NEXT (could be changed):

  • The chairperson will consult immediately on how to proceed and then announce further meetings over the coming weeks.
      
  • Formal meetings before or after the regular TRIPS Council meetings: Tuesday-Wednesday 7–8 June, Tuesday-Wednesday 25–26 October

Chairperson: Ambassador Darlington Mwape of Zambia

 

EXCERPT FROM CHAIRPERSON’S REPORT
3 March 2011

As foreseen in the work programme sent to Members on 13 December 2010, I have held a series of group consultations with a number of sponsors of the proposals on the table, namely the joint proposal, the proposal contained in TN/C/W/52, as well as the one by Hong Kong, China. The LDC group was added to this group for the last round of consultations in February.

Since January, following the TNC’s call to develop text in all negotiating groups before Easter 2011, this drafting group has worked through the list of six possible elements for a Register for GIs for Wines and Spirits that I had suggested on 7 December 2010. These six elements are:

  1. Notification
  2. Registration
  3. Legal Effects / Consequences of Registration
  4. Fees and Costs
  5. Special and Differential Treatment
  6. Participation

With respect to the organization of meetings, each series of drafting consultations in the small group was followed by an open-ended informal meeting for the purposes of transparency and inclusiveness. At these meetings I briefed delegations on the progress of the drafting exercise and shared with Members the draft composite text, as it developed. Such open-ended meetings were held on 13 January, 27 January and 11 February.

With respect to the composition of the drafting group I have applied the formula that Members themselves have chosen to use in the so-called “small brainstorming” group that met outside the WTO. That formula is a balanced representation of the two sides to which I have made a slight modification, by including Hong Kong, China as a third proponent. After the LDC Group — together with other delegations — made a textual proposal on the element of SPECIAL AND DIFFERENTIAL TREATMENT, I have also invited them to join the small drafting group.

To ease the inevitable pressure on the composition of the informal drafting group that is working through the six elements at technical expert level, I emphasized the role that delegations in the group should play in keeping informed those supporters of their proposals who are not physically represented in the informal drafting group. In other words, those participating in the informal drafting group should not only brief their fellow supporters outside the room, but should also act as their “representatives” with respect to any textual or other input they may have. I continue to count on those delegations to fulfil that role conscientiously, as this approach will permit us to keep the informal drafting group to its current manageable size, while keeping other interested Members appropriately involved. In the meantime, my door is always open for any delegation to contact me with any matter or concern relating to this negotiation on a bilateral basis.

In this context, I repeatedly emphasized that this process should not be seen to preclude Members from discussing, coordinating or developing text among themselves and, on that basis, to table such agreed proposals in my consultations. In fact, this process would still benefit if that could occur not only within the existing camps, but even across both sides of the debate, and I continue to encourage Members and group coordinators to create and utilize any such opportunity where possible.

Regarding our mandate to produce a negotiating text, I made it very clear that any text should emerge — as much as possible — from Members themselves, in line with the general directions laid out for this phase of the overall negotiations. In the group consultations, delegations had the opportunity to make textual proposals or comments that build on all of the past experiences and achievements of the Special Session, including the 3-4-5 approach and previous textual proposals, and to take a fresh constructive look at the issues.

In the consultations since mid-January the drafting group has managed to follow the above methodology, and has completed the exercise of putting text on paper on all the six elements. In view of the Special Session’s track record this is no small measure of success, and I thank all delegations for their patience and engagement. The state-of-play of the drafting group’s work is reflected in the paper that was circulated to delegations on Monday, 28 February. Copies of that paper are also available at the back of the room. Please note that I have added brief explanatory note on the meaning of the abbreviations used in the attributions in that paper.

With regard to the drafting group’s paper, let me recall once more the two important points of principle of this organization, that apply in particular to the work the group has undertaken this week:

  • First, this composite text has emanated exclusively from Members themselves, not from the Chair.
  • Second, this composite text represents work in progress and is without prejudice to Members’ positions on the overall outcome of the negotiations. Members are working on the understanding that nothing is agreed until everything is agreed, and that Members may revert to any issue of the text at any time.

Before opening the floor for comments on the state of affairs, let me make my usual pleas for leniency.

  • First, although we have come quite far with this process, it still remains somewhat fragile and delicate — and since I believe that we will need this process for a little longer, I would like to maintain this format for the time being. I seek your indulgence and understanding in that respect. It continues to be my intention to open the text up to drafting suggestions from the entire membership once sufficient substance is on the table. Looking at the number of square brackets in the current text, I believe we are not quite yet in a situation where this would be constructive, and I am therefore not opening the text for amendments in this session. However, it is my hope that we reach such a stage before the Easter deadline.
  • Second, the purpose of this formal meeting is for delegations — particularly those not present in the drafting group — to be able to put on record their views on the progress of the consultations and the current composite text. In view of past experience, let me remind delegations that the mandate in this forum is for negotiations on the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits. Despite my having received repeated assurances from all sides that this would be respected, we have still spent considerable time talking about whether or not the composite text should be neutral with respect to possible GI extension or not, and I must say that this has not been to my liking. Against that background — and although this issue has found its way implicitly into the draft composite text — let me say that I have no intention of entertaining this discussion here and I would therefore explicitly ask delegations to keep it outside this forum. I would further suggest that delegations refrain from repeating known positions and focus their comments on the current state-of-play and the composite text. In the words of the Director-General — please keep your answering machines turned off.

  

Current proposals

Three alternatives are currently on the table:

  • The Joint Proposal TN/IP/W/10/ 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.

See also groups in the TRIPS negotiations

Jargon buster 

Place the cursor over a term to see its definition:

• geographical indications (GIs)

• modality, modalities

• Special Sessions

• TRIPS

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