TN/IP/20
22 March 2010

Council for Trade-Related Aspects
of Intellectual Property Rights
Special Session

 

Multilateral system of notification and registration of geographical indications for wines and spirits

Report by the Chairman, Ambassador Darlington Mwape (Zambia) to the Trade Negotiations Committee for the purpose of the TNC stocktaking exercise

1. This report on the negotiations on the establishment of a multilateral system of notification and registration (“Register? of geographical indications (GIs) for wines and spirits is submitted on my own responsibility and is without prejudice to the positions of delegations and to the outcome of the negotiations.

I. STATUS OF WORK

2. On 4 March 2010, the 25th formal meeting of the Special Session of the Council for TRIPS confirmed my appointment as Chairman in replacement of Ambassador C. Trevor Clarke (Barbados), who had relinquished his post at the end of November 2009. From 8 December 2009 to the date of my appointment, Ambassador Karen Tan (Singapore) chaired the Special Session on a pro tempore basis.

3. Since taking up his post on 29 October 2008, Ambassador Trevor Clarke had, at the request of Members, intensified the work of the Special Session, culminating in a report to the Trade Negotiations Committee (TNC) in document TN/IP/19, dated 25 November 2009 (for more details, see Annex 1 to this report). This report also refers, for certain aspects such as notification and registration, to a report made by his predecessor, Ambassador Manzoor Ahmad (Pakistan) in document TN/IP/18, dated 9 June 2008 (see Annex 2 to this report). Ambassador Karen Tan gave an oral report of the informal consultations she had held in the interim period.¹

4. At my first formal meeting of 4 March 2010, I made it clear at the outset that the specific negotiating mandate of the Special Session was limited to the negotiations of a Register of GIs for wines and spirits, and that other TRIPS-related issues were being handled in another context and at a different level. I said at that meeting that, while I may not be able to prevent delegations from making linkages, my task as Chair will be to remind Members of the limited mandate of the Special Session.

5. The three main proposals that have been discussed remain on the table. ²

6. Tough, but useful technical discussions have taken place in the past years, more recently under Ambassador Clarke’s chairmanship, around the three clusters of issues identified in the reports of my predecessors, i.e.:

(1) legal effects/consequences of registration and participation, where profound differences remain;

(2) notification and registration, where a fair amount of technical work has been done, but where further work is clearly required as positions on these matters are linked to the resolution of the two key issues in cluster 1 above; and

(3) other issues, such as fees, costs, administrative and other burdens, in particular for developing countries and least-developed countries, and special and differential treatment, which have been less fully discussed.

7. In order to focus discussion on these clusters, and to provide a structure for discussions that went beyond having delegations simply expressing positions on their contrasting proposals, Ambassador Clarke circulated a list of four questions on 2 October 2009:

(i) 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?

(ii) 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?

(iii) Are there any options regarding participation, other than voluntary and mandatory participation? If so, what criteria could be envisaged?

(iv) What form could special and differential treatment take with regard to the Register?

8. I understand that delegations had excellent discussions on the basis of this list of questions. While this discussion did not fill the main gaps, it certainly succeeded in focusing Members?discussions on the critical issues. It is my impression that thanks to the clarifications, case studies and presentations put forward by delegations in response to these questions, there is now much more technical information on record regarding the operation and implementation of different proposals in the national legal systems of Members. This kind of technical discussion probably gave Ambassador Clarke some material to make suggestions on the way forward, including five guiding principles for future work in paragraph 16 of TN/IP/19. The five “guiding principles?are:

(i) The purpose of the Register is to facilitate, not to increase, the protection of GIs for wines and spirits.

(ii) The Register should be useful and meaningful to both notifying Members and consulting Members.

(iii) The territorial nature of intellectual property rights should be preserved.

(iv) The Register should not impose undue financial and administrative burdens on Members.

(v) Special and differential treatment should be precise, effective and operational.

9. My understanding is that TN/IP/19 has been well received by Members as a fair and balanced reflection of the work undertaken, and of the current status of issues. On the way forward, there may be some nuanced views on Ambassador Clarke’s assessment of the main remaining challenges, e.g. on participation (should it be voluntary, mandatory or conditional?). On the most difficult issue of legal effects/consequences of registration, thanks to the willingness of delegations to give down-to-earth clarifications and descriptions of how a proposal could in practice be implemented in domestic systems ?the so-called “realities? my predecessor felt “that negotiating efforts could find an acceptable formulation for an obligation capturing the realities highlighted by Members regarding how domestic authorities would treat information they have derived from a consultation of the Register, and that further negotiations are required to determine guidelines for such an obligation?

10. In respect of the guiding principles in paragraph 16 of TN/IP/19, I am fully aware of delegations?positions. All delegations agree that they are a useful tool for our work, but some think that they should not serve as the basis for negotiations, nor as an excuse to continue rhetoric debates on well-known concepts such as “multilateral? or “to facilitate?

II. FUTURE WORK

11. With all this in mind, I suggested at my first formal meeting that we build on what has been undertaken instead of reinventing the wheel. I would, therefore, suggest the ?-4-5? approach, namely:

(a) we continue to structure our work around the three clusters identified by my predecessors;

(b) while doing that, we continue to use Trevor Clarke’s list of four questions on legal effects, participation and special and differential treatment;

(c) while discussing each issue, we should try to see how our concerns could be reconciled:

• in the light of continuing explanations as to how Members would actually implement different options within their national systems,

• and bearing in mind the five guiding principles in TN/IP/19, without negotiating on those principles as such and recognizing that delegations may have some reservations on certain aspects of the principles.

12. Regarding paragraph 11(b) above, I do not exclude the possibility to put forward more questions as we progress in the discussions in order to keep the negotiations on the right track.

13. My impression from my first formal meeting is that the issues of legal effects/consequences of registration and participation are the stumbling block and that their resolution, in particular regarding legal effects/consequences of registration, will help progress in the other areas, including special and differential treatment. It is my sense that there is a genuine desire to further progress in the negotiations, which is illustrated by some delegations continuing to give useful clarifications and examples of how the implementation of the proposals on the table would be implemented at their domestic level, and others expressing willingness to make similar contributions or further supplement them.

14. On the whole, the difficulty we are facing is a lack of convergence on a single textual basis for negotiations, which reflects both the differences in Members?positions and the different nature of the proposals on the table.³ Therefore, the ?-4-5?approach should help progress work towards one text on the basis of which all Members can agree to continue the negotiations. I believe that such a text is possible, and that exploring the flexibilities that already exist or could be envisaged in Members?national systems is one important step towards that objective. One possibility would be to construct at a certain point in time ?strictly in pace with the overall process ?a text from elements emerging from the delegations themselves.

15. Technical work should focus on the substantive issues, including in particular the question of the implications of a register entry, while using and building on the foundation established by Ambassador Clarke’s work. There could be more exchange of technical information about how national trademark and GI authorities presently operate and how their operation would be affected by different proposed ways of “taking account?of the information on the register.

16. A formal meeting of the Special Session has been tentatively scheduled for 10 June 2010. I do not, however, exclude consultations and meetings in various formats before that time in pace with the overall process.

 

Annex 1

Document TN/IP/19, 25 November 2009

 

Annex 2

Document TN/IP/18, 9 June 2008

_____________________________________

 

Notes:
1. To be reflected in the minutes of the 4 March formal meeting. In the meantime, see http://www.2n2y.com/english/news_e/news10_e/trip_04mar10_e.htm  back to text
2. Document TN/IP/W/8, tabled in April 2003, contains the proposal by Hong Kong, China. Document TN/IP/W/10, tabled in March 2005, contains the “joint proposal?and has been revised to reflect additional co sponsors. The list of Members currently co-sponsoring TN/IP/W/10/Rev.2, dated 24 July 2008, is as follows: Argentina, Australia, Canada, Chile, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Japan, Korea, Mexico, New Zealand, Nicaragua, Paraguay, South Africa, Chinese Taipei and the United States (“Joint Proposal Group?. Document TN/C/W/52, dated 19 July 2008, and its Addenda 1 3 contains a proposal for “Draft Modalities for TRIPS Related Issues? co-sponsored by Albania, Brazil, China, Colombia, Croatia, Ecuador, the European Communities, Georgia, Iceland, India, Indonesia, the Kyrgyz Republic, Liechtenstein, Moldova, the Former Yugoslav Republic of Macedonia, Pakistan, Peru, Sri Lanka, Switzerland, Thailand, Turkey, the ACP Group and the African Group. Under the sub-heading “GI Register: draft Modality text? paras. 1-3 of document TN/C/W/52 specifically address the issues relating to the Register of geographical indications for wines and spirits. Para. 9 of TN/C/W/52 refers to special and differential treatment. back to text
3. While two proposals, TN/IP/W/8 by Hong Kong, China and TN/IP/W/10/Rev.2 by the Joint Proposal Group are in legal text form, the text in TN/C/W/52 is a modalities proposal. back to text