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 is being constructed piece by piece and now has a section on “registration” added to a revised one on “notification”. The aim is to have a more-or-less complete single text towards the end of March. It will contain opposing opinions but a single text — rather than rival documents — is an essential tool to allow negotiators to narrow down their differences more practically.

The draft was circulated by Zambia’s ambassador Darlington Mwape, the current chairperson of the 13-year-old negotiations on setting up the multilateral register, now part of the Doha Round.

As before, the latest addition was produced from drafting consultations he held earlier in the week involving representatives of the three groups that have submitted proposals in the talks.

Like the first draft text only on “notification”, which was circulated in the previous meeting on 13 January, this four-page draft reflects all three positions, leaving most of their differences unresolved.

Ambassador Mwape repeated that the composite text is “work in progress” that “emanated exclusively from the members themselves, not from the chair”. (An excerpt from his oral report is below).

 

Road blocks and road rules

The drafting “continues to be fragile and delicate,” Amb.Mwape told negotiators, with the consultations running “into a number of roadblocks”. He warned that the next issue — the legal effects or consequences of a term being registered — could be doubly difficult when the drafting group resumes in the week of 8 February.

In order to help the drafting consultations progress smoothly, he set out some “rules of the road”, including deadlines for the participants to submit their drafts and an assurance that if the deadlines are missed participants can propose additions to the “composite” text during the consultations.

He also assured the whole membership that they would all have an opportunity to work on the draft “once sufficient substance is on the table”.

The new section on “registration” deals with the next steps after notification: how registration would proceed after a geographical indication has been notified, including what would be recorded or appear on the register and how the register would be updated to take account of changes to notifications or registrations — for example if a geographical indication is no longer used.

 

Square brackets

Options in square brackets continue to reflect the different proposals of “W/52 coalition” (the EU, Switzerland and their allies), the “joint proposal group” (US, Australia, Canada, Chile, New Zealand, Japan, Argentina and others), and Hong Kong, China (whose proposal attempts to bridge the differences) — see “current proposals” below.

Some of the major differences reflected in square brackets are about the legal implications in other countries when a member registers a term, the subject that will be discussed next.

Members also differ over whether the register should only be for wines and spirits as prescribed under the present mandate, or whether the system should cover geographical indications for all products.

The chairperson told negotiators that their time “could be spent more usefully on issues that lie clearly within the mandate. In other words — and since we are in road metaphors anyway — in our group we should concentrate on building the road from Doha to Geneva as instructed by Members through the TNC, rather than worry about how many lanes the road is going to have.”

He also urged them to save time by working among themselves — both within and between their groups — to prepare for his consultations and to try and bridge their differences.

 

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 and his predecessors have identified legal effects or consequences, 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. See here. 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.

Comments. There was no attempt in this meeting of the full membership to negotiate among the options in the draft. The delegates who spoke thanked the chair for his efforts, referred to the mandate and the time needed to coordinate positions and prepare draft text, particularly in a large group, and briefly debated their familiar differences over whether the version of the register proposed by the “W/52 coalition” would be too costly and burdensome.

 

NEXT (could be changed):

  • Continuing step by step negotiation and drafting. Next meeting of all members in the week of 8 February.
  • Formal meetings before or after the regular TRIPS Council meetings on 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
27 January 2011

I have held group consultations from Monday to 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.

Before I report on progress, let me repeat the methodology we are using: 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, to me, 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 six elements at technical expert level, I have emphasized — and wish to repeat — 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, let me repeat 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 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.

May I now address the issue of our mandate to produce a negotiating text, I continue to expect 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. In the group consultations, delegations have 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.

Let me now briefly report on the progress made in the drafting group this week. As foreseen, the drafting group began by revisiting the section on NOTIFICATION in the draft composite text. A number of square brackets were eliminated here and a few delegations took the opportunity to amend the text they were supporting in this section. After a thorough examination of that part, the group moved on to the draft composite text on REGISTRATION which had been prepared on the basis of the textual proposals Members had submitted by the deadline of 20 January that I had announced at the last open-ended meeting. In that section, too, Members worked hard to remove brackets and to amend text to better reflect their respective positions.

Although we ran into a number of roadblocks during the consultations — as you can imagine — I nevertheless think that, at the end of the day, the group managed to progress on these two areas of NOTIFICATION and REGISTRATION. I would like to thank all delegations, and in particular Hong Kong, China, for their continued efforts to focus on our important task of developing text, and for their varying degrees of flexibility in resolving difficult situations along the way. The state-of-play of the group’s work is reflected in the paper that is being made available in the room.

Although the group was not able to move on to the next element of Legal Effects/Consequences of Registration, which I had hoped to at least begin working on, I can report that I had received textual proposals on that element from Hong Kong, China and from the Joint Proposal Group by the deadline — and these submissions are also made available in the room by their proponents.

With regard to the group’s paper on NOTIFICATION and REGISTRATION, let me again emphasize two important points of principle of this organization that apply in particular to the work the group has undertaken this week:

  • First, the composite text has emanated exclusively from Members themselves, and 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 first note with satisfaction that the square brackets are now attributed to their supporting Members. I am glad to say that this is a truly member-driven process, and the paper reflects exclusively the sometimes divergent views of different Members — both in the text and in the title — of the draft composite text. In order to remind everyone — and to quell any doubts — regarding my mandate in this negotiating group, I am circulating that paper with my own cover page, using the title we have traditionally used to describe our mandate, eg, in reports to the TNC. Whether that title will in the end also be the title of the register is of course up to you, the Members, but I will continue to use it to signal that nothing has changed in respect of our mandate.

In that context I would like to remind delegations that all Members have agreed to engage in this negotiating process in the Special Session without encumbering it by discussions on the mandate. Although I have received repeated assurances in that regard, the group is still losing substantial amounts of time discussing language that might implicate the mandate. While I am but a facilitator of the decisions and the progress that you yourselves can make on the road towards a negotiating text on the GI Register for wines and spirits — I must nonetheless point out that this time could be spent more usefully on narrowing differences on issues that lie clearly within the mandate. In other words — and since we are in road metaphors anyway — in our group we should concentrate on building the road from Doha to Geneva as instructed by Members through the TNC, rather than worry about how many lanes the road is going to have.

Again — getting to the current composite text has not been easy and this process continues to be fragile and delicate — and this is doubly true as we approach one of the stumbling block elements which is Legal Effects / Consequences of Registration. I therefore urge all Members again 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 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 I 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.

Now, in order to ensure that nobody gets lost, or takes a wrong turn, let me spell out the rules of the road for the next session:

  • A draft composite text for the elements that will be taken up for the first time at the next session will be prepared on the basis of Members’ textual proposals that are submitted by the set deadline. The purpose of this practice is to save time for the drafting group, which can then start work directly from the draft composite text. 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. This means that, once a part of the draft composite text has been discussed in the drafting group, new textual proposals on that part will no longer be integrated by the Secretariat but should be made in the drafting group. So — to illustrate that point — if delegations want to make new textual proposals on the part of REGISTRATION which has already been worked on by the group, these can be made coram publico (ie, openly in front of everyone) in the drafting group and will be reflected in the draft composite text as an amendment.
  • With regard to the deadline — in order to keep the process moving forward, and in view of the little time we have left before the formal meeting, I suggest the following. A draft composite text for the next two elements, namely Legal Effects / Consequences of Registration and Fees and Costs will be prepared on the basis of proposals that delegations send in by Wednesday, 2 February, 2011 close of business (Geneva time).

Let me repeat that the deadlines are set in order to encourage delegations to submit text ahead of the drafting group sessions, but they do not pre-empt further textual proposals or comments later. They do, however, mean that delegations cannot refuse engagement on the element in question simply because they have no submitted text by the deadline. They are free to make their proposals in any of the meetings of the drafting group.

 

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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