WTO: 2011 NEWS ITEMS

INTELLECTUAL PROPERTY: GEOGRAPHICAL INDICATIONS NEGOTIATIONS

NOTE:
THIS NEWS ITEM 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.

  

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The draft was developed in two days of consultations among representatives of the three groups that have submitted proposals in these negotiations. The 13 January meeting was an opportunity for the full membership to look at it.

The draft is about a page and a half long with numerous square brackets around text to indicate that the wording has not been agreed and that several options are presented to reflect the different approaches of the three proposals.

“This composite text has emanated exclusively from members themselves, not from the chair,” Amb.Mwape told negotiators (an excerpt from his oral report is below).

The draft on notification deals with definitions, descriptions and the legal basis of the terms that members would notify and other possible information. The options in square brackets reflect the different proposals of “W/52 sponsors” (the EU, Switzerland and their allies), the “joint proposal group” (US, Australia, Canada, New Zealand, Japan, Chile, Argentina and others), and Hong Kong, China (whose proposal attempts to bridge the differences) — see “current proposals” below.

 

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 to be 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 of registration, and participation, as the most difficult of the six.

The present tight schedule is based on the call from the Trade Negotiations Committee, which oversees the Doha Round talks, for texts to be developed in all negotiating areas by the end of the first quarter of 2011.

The aim in these intellectual property talks is to have a complete draft text on the multilateral register within that target, building up the six topics point by point.  Amb.Mwape said that if the task is to be finished in time they have to deal with more than one topic in each of the weeks designated for the negotiation.

The next session will be in the week of 24 January and will begin work on registration and “hopefully” move on to legal effects/consequences of registration, he said.

 

Fragile and delicate

“Let me assure you that getting to this stage has not been easy,” he told negotiators.

He described consultations as “showing first elements of success”, but continuing to be “extremely fragile and delicate”.

“I will spare you the details of the difficult situations we have navigated. … Taking into account the profound divide that has been the hallmark of this negotiation group, I am heartened by the steps the group has been able to take this week,” he said.

In order to keep all members involved, representatives of the coalitions who participate in small-group consultations have to keep their allies informed and receive instructions from them, the chairperson said.

Comments. The delegates who spoke mainly focused on procedural issues such as the deadline for input into the next draft and how the options in square brackets reflect the sponsors’ positions. Cuba repeated its emphasis on special treatment for developing countries.

There was no attempt in this meeting to negotiate among the options in the draft. The chairperson said he would hold drafting meetings for the full membership — as distinct from the small group consultations — as is normal in WTO negotiations, “once I believe that sufficient progress has been made for such meetings to be constructive.”

NEXT (could be changed):

  • Continuing step by step negotiation and drafting. Next meeting to be announced.
  • Formal meetings before or after the regular TRIPS Council meetings: Tuesday-Wednesday 1–2 March, Tuesday-Wednesday 7–8 June, Tuesday-Wednesday 25–26 October

Chairperson: Ambassador Darlington Mwape of Zambia

 

EXCERPT FROM CHAIRPERSON’S REPORT
13 January 2011

Let me first recall that after the TNC’s call for texts to be developed in all negotiating areas by the end of the first quarter of 2011, we agreed in early December to structure our negotiations in the TRIPS Special Session around 6 elements. These elements are to be addressed sequentially one-by-one with the aim to produce a single text on each of the elements — if necessary with bracketed alternatives and options.

As foreseen in the work programme sent by fax on 13 December 2010, I have held group consultations on Tuesday and Wednesday this week 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.

A few words on methodology: With regard to the organization of meetings, as you know, we began with informal group consultations. Mindful of the delicate balance between focus and inclusiveness, between group consultations and open-ended meetings, I have already told you that I will take care to keep all Members appropriately informed through open-ended meetings such as the one today.

For the drafting group consultations 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. To ease the inevitable pressure on the composition of the informal drafting group that is working through the 6 elements at technical expert level, I have 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 am counting 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, let me repeat that this process should not be seen as 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 will be greatly helped if that could occur not only within the existing camps, but even across both sides of the debate, and I encourage Members and group coordinators to create and utilize any such opportunity where possible.

Regarding our mandate to produce a negotiating text, it continues to be my expectation for this text to emerge — as much as possible — from Members themselves, in line with the general directions laid out for this phase of the overall negotiations. The Special Session is fortunate enough to be able to draw on substantial amounts of work which have been steadily accumulated in the past by this negotiating group. This work includes:

  • successive textual proposals from different sides that have not yet succeeded in creating consensus,
  • the 3-4-5 approach developed progressively by former chairs and myself which highlights categories of progress, questions of concern, and principles that may guide further discussion of this group,
  • as well as the useful recent substantive and technical clarifications on current practices.

In the group consultations, delegations had the opportunity to make textual proposals that built on all of these past experiences and achievements and to take a fresh constructive look at the issues.

Let me now briefly report on the progress made in the drafting group this week. After a thorough consideration of textual proposals as well as textual comments from a number of delegations, the group chose to work from a composite text that assembled all proposed wordings in a single body of text. This composite text was then closely examined and amended by Members in the group with a view to remove — to the extent possible — square brackets. The state-of-play of the group’s work is reflected in the paper that is being made available in the room.

Let me first emphasize two important points of principle of this organization, that apply in particular to the work the group has undertaken:

  • 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.

Regarding the paper that is circulated today, let me point out that not all square brackets in this version are currently attributed to their supporting Members. This is because certain Members, while being able to engage constructively in text-based negotiations, were not in a position to formally appear in the text with attributions, at this stage of the process. As circulating a version with only partial attribution is certainly not my preference, I have strong hopes that this remains an exception and that in future open-ended meetings I will be able to circulate draft text with full attributions.

Now, having shared with you the current composite text, let me assure you that getting to this stage has not been easy. As with all long journeys, the first steps are often the most difficult ones and this has certainly been the case this week. I will spare you the details of the difficult situations we have navigated, but I would like to thank all Members in the group for having shown great resolve and determination to keep us all on the track agreed by Members in the TNC. This has helped me in carrying out my duty as Chair. Taking into account the profound divide that has been the hallmark of this negotiation group, I am heartened by the steps the group has been able to take this week.

Having said that, this process — while showing first elements of success — continues to be extremely fragile and delicate. It is for that reason that I would urge all Members to give this process some time to stabilize. Those of you who see the paper for the first time today should take some time to not only digest its current content, but to also consider its potential for progress in the negotiations. I would seek your indulgence and understanding that the drafting work will continue in group consultations, as is the usual practice in all WTO negotiating groups. It is, of course, also the practice in WTO negotiations to open a text up to drafting suggestions from the entire membership once sufficient substance is on the table — and let me assure you that I will hold drafting sessions in open-ended format once I believe that sufficient progress has been made for such meetings to be constructive. Until such time has come it is my intention to use the regular open-ended meetings to communicate to Members the state-of-play of the work conducted in the group consultations. Needless to say, my door is always open for you to raise your concerns with me bilaterally.

In view of the bumpy ride we have had at times during this week, I have decided to lay down a number of simple rules of the road for our work on the remaining elements, in the hope that the rest of the trip will be more comfortable.

  • It has become clear that working on a composite text emanating from Members is the most productive approach that the drafting group can take. Therefore, in order to make best use of our time we should strive to have a composite text ready at the beginning of each round of consultations on each element.
  • For this purpose, I suggest that a composite text be prepared on the basis of Members’ textual proposals that should be submitted within a certain deadline. It goes without saying that Members can of course still make comments and proposals after that deadline — however, these will then be reflected as amendments in the composite text.
  • For example, for the week of 24th January, which will begin with the element of Registration — and will hopefully continue with the element of Legal Effects/Consequences of Registration — I have invited delegations to send their proposals by Thursday, 20 January 2011 c.o.b. (Geneva time).

 

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.

See also groups in the TRIPS negotiations

Jargon buster

• 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 negotiations.
 

• TRIPS: Trade-related aspects of intellectual property rights.

> More jargon: glossary

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