Minutes - TRIPS Council - View details of the intervention/statement

Ambassador Eduardo Pérez Motta (Mexico)
79. The representative of Argentina said that the TRIPS Agreement protected private rights on the basis of territorial application and was, therefore, a sui generis agreement among the multilateral trade agreements in Annex 1 of the WTO Agreement. Among the general objectives of the GATT/WTO which aimed at reducing tariffs and other trade barriers, the multilateral regulation of intellectual property rights became necessary to reduce distortions and barriers to international trade so that proper protection of such rights would not become barriers to legitimate trade, as noted in the Preamble to the TRIPS Agreement. Consequently, Members should consider that the main objective of these debates was to avoid intellectual property rights becoming barriers to trade. The extension to products other than wines and spirits was a claim which would strengthen territorial rights to the detriment of liberalisation and facilitation of international trade. 80. In reply to a comment made that the countries that produce wine had additional advantages and were nevertheless opposed to the extension of these so-called advantages to other products, she pointed out that Argentina, a wine-producing country, had not yet seen any of those advantages. The implementation of the protection system under Article 23 by Argentina had resulted in a financial and administrative burden that was very difficult to cope with due to the lack of experience with this kind of protection, the high costs of implementing the system corresponding to Article 23, and the costs of capacity-building. In addition, some countries were questioning the implementation of the exceptions Argentina was entitled to avail of under Article 24 and under Article 23.3. If there were advantages, they had been enjoyed to date by those countries that had a long tradition of this type of protection and which happened to be those who were pushing strongly for the extension of protection. Argentinian wines continued to face the same problems of access to certain markets as they had faced already before the conclusion of the TRIPS Agreement. The TRIPS Agreement had not removed any barriers to trade in wine and, as a consequence of bilateral agreements on geographical indications, the legitimate access of Argentinian wines to third party markets had been directly affected. 81. If difficulties had arisen in implementing protection at the national level for geographical indications in respect of only two products, it would not be consistent to propose in the WTO an extension of this protection to other products. The statements that the extension of protection would not require the establishment of a new, expensive and complicated international mechanism were not consistent with the reality faced by developing countries when they tried to implement existing standards of protection under TRIPS. If it were so simple and automatic to implement the protection provided under Article 23, the Agreement itself would not provide for the establishment of a multilateral system of notification and registration for wines and spirits. This also showed that protection under Article 23 was not "absolute", as some Members maintained. The features of the notification and registration system which would finally be established for wines and spirits would determine the degree of complexity of the system and the costs to be borne by every Member at the national level. There would inevitably be a correlation between the complexity of the system and the burdens that Members would have to bear. It had also been stated that the extension of the protection under Article 23 to other products merely signified that a geographical indication could be used for certain products only if those products really originated in the indicated geographical region. That concept did not correspond to the definition of Article 22.1 because it took no account of the requirements which were quality, reputation, or other characteristic of the good essentially attributable to its geographical origin and which were elements inherent in the protection provided by geographical indications. On that issue, which was basic for the definition established in Article 22.1, there had been a substantive debate during the previous week at the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications. Those statements corresponded to appellations of origin and not to "geographical indications" as defined in the TRIPS Agreement. 82. She said that the costs for geographical indications being recognized abroad would depend in some cases on the conditions that each country had established for the recognition of foreign geographical indications. Regarding legal costs, nothing indicated a priori that conflicts would not continue or even deteriorate. 83. Article 22, applicable to all products, was the general rule of protection. Article 23 complemented Article 22 and not vice versa, because Article 23 was the exception to the general rule. Articles 22 and 23 were not different as regards the basic obligation on Members to provide legal means so that interested parties could prevent the use of geographical indications. In both cases, the obligation on Members was to provide legal means to the holders of any IPRs, recognized as private rights in the Preamble to the TRIPS Agreement so that these right holders could exercise them in their respective national jurisdictions. Article 22 contained a definition of geographical indications without distinguishing between products. This definition was an agreed upon, harmonized concept in itself. Protection under Article 23 was not exclusive or absolute and was an exception to the general rule established in Article 22. Also, geographical indications required a link between a product and a particular quality, reputation, or other characteristic. Therefore, national authorities should not merely examine whether the product originated from the place designated by the geographical indication. 84. She fully agreed on the importance of the exceptions in Article 24. Exceptions were part of the balance between rights and obligations that the Agreement tried to established. It was still not clear how those exceptions had been implemented in national legislations and, still less, how they prevailed in bilateral agreements concluded since the conclusion of the TRIPS Agreement. The information available on the latest agreements relating to wines showed that there had been a certain erosion of those exceptions. If countries in favour of the extension of Article 23 protection considered that exceptions in Article 24 should be fully valid, they should make sure that all Members shared that point of view and encourage the collection of information as to how these exceptions had been taken into consideration since the conclusion of the TRIPS Agreement. 85. Regarding homonymous geographical indications , she said that, in respect of paragraphs 21 to 24 of document IP/C/W/353, some of the countries that had submitted this document did not apply this approach in practice. In paragraphs 26 to 28 of the same document, they relativized what was said in Article 23.3. In addition, those paragraphs reaffirmed the importance of the connotation that geographical indications should have for the consumer. Paragraph 4 of the same document argued for setting up a comprehensive system of protection of geographical indications, which seemed to indicate that those delegations were not only promoting extension of the protection under Article 23 but also a re-writing of the TRIPS Section on geographical indications. She said that her delegation was surprised and concerned that in the same paragraph the document referred to the exceptions in the Agreement and at the same time it claimed that there were "transition periods" for the use of certain geographical indications, which were not at all provided for in the TRIPS Agreement. She recalled that, at the last Council meeting, one delegation had said that strict protection of geographical indications, as had been demonstrated by the overwhelming support for the extension, was of overriding priority for developing countries. This did not correspond to the reality nor to the debates. In light of the documentation submitted and interventions made at previous Council sessions, it might be deduced that only a small number of developing country Members were expressly in favour of extension. That same delegation had argued that as a result of growing international competition relating to generic agricultural products and commodities there could be a sharp fall in the income of new Members, and that those countries needed other sources of income; the protection of geographical indications would guarantee market access for those countries. That statement had been repeated in document IP/C/W/353. In this respect, she said that some developing countries promoting the extension of protection for geographical indications were foreseeing the possibility of protecting generic agricultural commodities. However, there was no proof that the protection of geographical indications would overcome the present obstacles that existed in some countries to trade in agricultural products such as dairy products. 86. Associating her delegation with the statement made by Australia at the Council's previous meeting, the representative of Argentina said that the issue of immigration, culture and customs was important. Argentina was among the countries of the world that historically had had the greatest immigration, estimated at 6 million people between 1850 and 1970. In 1975, foreigners had accounted for 25.5% of the population of the country. That percentage had reached its maximum in 1914, a year when 2.5 million foreigners lived in Argentina. In that same year, 49% of the population of Buenos Aires was made up of foreigners. Between the end of the second world war and 1952, 110,000 people per year came to Argentina, which was higher than the levels in previous years. She said that these figures showed that, while many delegations spoke of illegitimate or abusive use, there were many legitimate uses because immigrants took customs with them when they immigrated, either for economic, social or other reasons. Therefore, customs were maintained and, in fact, were acquired rights which Members could not wipe out in the course of negotiations. 87. The Doha Ministerial Declaration did not give a mandate to negotiate an extension of protection under Article 23 to products other than wines and spirits. Ministers had noted that issues related to the extension of the protection of geographical indications provided for in Article 23 to products other than wines and spirits would be addressed within the TRIPS Council pursuant to paragraph 12 of the Declaration. She said that it was obvious that the discussion did not cover the establishment of negotiation modalities. On the TNC decision of 4 February 2002, she believed that the TNC was not empowered to amend the mandate in paragraph 18 of the Declaration. She recalled that the TNC had also indicated that other issues in paragraphs 18 and 19 would be addressed on a priority basis. The TNC did not mention any specific issue nor did it establish any order of priorities among the various issues dealt with either in paragraph 18 or 19. Each body set up by the TNC, or to which it assigned items determined by Ministers in Doha, would determine the form in which the various items would be tackled. The mandate that Ministers gave to the TRIPS Council was to submit a report to the TNC which would decide on appropriate action. She said that her delegation, therefore, was not in a position to support the proposal contained in paragraph 4 of document IP/C/W/353.