140. The representative of Australia said that the discussion in the TRIPS Council over the last few years on the subject of geographical indications had generated considerably more heat than light, confusion than consensus, and passion than persuasion. Members had spent many hours seeking to clarify what was meant by the reference in Article 24 of the TRIPS Agreement to negotiations aimed at increasing the protection of individual geographical indications under Article 23. Ministers had pronounced on the matter at Doha in a somewhat roundabout way which was the best that could be achieved at that time. The Council had been charged with the task of addressing the issues related to the extension of geographical indications provided for in Article 23 to products other than wines and spirits and was obliged to present a report to the TNC by the end of the year. The TNC would then decide on what further action, if any, should be taken. Some delegations would have preferred to have dealt with the matter in a different way and some delegations had issued unilateral interpretations of the Doha Declaration which went beyond Australia's interpretation. Australia would, if necessary, engage in a discussion in the Council about what Ministers agreed but was also ready to focus on substantive issues. It did so on the understanding that the purpose was to address the issues relating to extension and not to discuss modalities of possible negotiations on extension.
141. He said that a number of conceptual issues needed to be discussed. What was meant by protecting a geographical indication? Whose interests were sought to be enhanced or protected? Was the aim of the demandeurs simply to give the protected geographical indication an exclusive IP right? Was their aim to promote regional industries or was it to protect consumers? How was the Council to reconcile the interests of producers with a distinctive reputation or tradition of production and those of producers who had an interest in the unrestricted use of common product descriptions, personal names and unregistered trademarks and business names? Which products deserved this additional protection? Should services be included? Were the demandeurs asking to embark on a re write of the TRIPS Agreement? Were they suggesting the removal of the consumer deception test and the "fair use" exceptions for geographical indication protection now clearly enunciated in the TRIPS Agreement? These questions led to more substantive questions about the nature of international norms that demandeurs were seeking. Were they, for example, seeking a unique global outcome for an individual IP right or were they prepared to maintain exceptions for different linguistic and cultural applications, and to allow for different perceptions among different consumers? There appeared to be paradoxes in the argumentation of the advocates for extending geographical indication protection. Some of these advocates have argued in relation to pharmaceuticals, living organisms and traditional knowledge for the need to apply public policy exceptions to balance the monopolistic effects of IPRs, for the need to resist the erosion of national sovereignty in regards to the removal of discretion over the grant or ¬refusal of IP rights, for the need to avoid claims to IP over material in the public domain, and for the need to avoid unwieldy regimes which placed unfair burdens on them. However, in relation to geographical indications, they appeared willing to eliminate public policy exceptions, deny national courts jurisdiction over geographical indication determinations, ignore material in the public domain, embark on a potentially large and complex regime for protecting geographical indications despite the fact that the costs and benefits could only be guessed and put at risk the reasonable and carefully negotiated balance between private rights and public interest considerations. Australia had sometimes been accused of delaying tactics when it argued for a better understanding of the models of IP protection at the national level. However, international standards for IP protection were likely to be most effective and workable when they gave effect to models which had proved successful at the national level. The Council needed to have a better understanding of national experience in geographical indication protection an understanding of what countries already did to give effect to their TRIPS obligations on geographical indications and an understanding of the costs associated with the kind of international protection models which were being advanced by demandeurs.
142. Continuing, he said that the results of the Doha Ministerial Conference had portrayed this issue as an implementation issue by listing it at Tiret 87 in the list of outstanding implementation-related issues and concerns (Job(01)/152/Rev.1). The statement in Tiret 87 that "additional protection for geographical indications shall be extended for products other than wines and spirits" was very much an ambit claim. Implementation related issues had received intensive consideration over the past two years. This reflected a determination on the part of the WTO membership to address issues and concerns that had been raised by many developing country Members regarding the implementation of WTO agreements and decisions. Implementation issues related solely to areas where developing countries could potentially benefit either as a result of action taken by developed countries to accelerate or more fully implement their obligations as they related to developing countries or by providing for greater flexibility in how developing countries implement their own obligations. They were not intended to provide additional flexibility to developed countries who may have had similar difficulties and resource constraints in implementing obligations or to cover areas where developed countries would benefit from action taken by other developed countries. None of the 59 tirets in the list of outstanding implementation-related issues and concerns were inserted at the request of developed countries. All were inserted at the request of developing country and LDC Members. Therefore, as an implementation issue, the Council's task was to address the issues related to the extension of additional protection to products of specific interest to developing countries and not those of interest to developed country demandeurs. In other words, this was a North/South issue and South/South issue but not a North/North issue. As most "countries in transition" were in the process of negotiating membership of the European Union and were expected to have joined it by the entry into force of the results of these negotiations, he would categorise them as developed countries for the purposes of this exercise.
143. The Council needed to explore the definition of geographical indications. Geographical indications were interpreted in the TRIPS Agreement as "indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographic origin". He asked whether the demandeurs for extension of additional protection were seeking to change this definition. It had never been interpreted under the DSU and individual Members applied the term in their own jurisdiction, using a wide variety of definitions and different instruments and policies. The Council needed further clarification as to how geographical indications had been interpreted nationally and, more specifically, how Members protected their own geographical indications. Australia advocated pursuing this issue under the Article 24.2 review. Unless Members fully understood what was happening in practice, they would not be able to assess whether the current level of protection under Article 22 was inadequate. To date, the Council had heard no concrete, empirical evidence of instances in which Article 22 protection had failed adequately to protect a term protected in its country of origin as a geographical indication. Rather, it had heard general assertions about the inadequacy of the misleading tests as a means of IP protection assertions which flew in the face of established IP protection mechanisms.
144. The Council also needed to explore whether the definition covered indications that were not geographical place names, such as "basmati" rice and "jasmine" rice, and whether the definition covered a country name, as at least one Member rejected the view that a country name could be used to describe a product. Members needed to ask what the demandeurs were suggesting. Notwithstanding the implementation nature of the issue, he took the example of the European Communities, which he said already had a system of protection for product names which did not appear to provide national treatment. Their system or systems were described as "protected designations of origin", "protected geographical indications" and "traditional specialty guaranteed". He had found on the internet a list of 562 product names, covering 12 categories of food and other products, which the European Communities wished other Members to protect. There were 32 other names which might fall within the TRIPS definition of geographical indications but which were not protected for some reason in the European Union. If this was because they were deemed generic, it raised the question as to whether a term deemed generic in one WTO Member was necessarily perceived as generic in another Member. It was not clear whether the European Communities wished other Members to protect these 32 other names. In addition, the European Communities wished other Members to protect traditional expressions, such as "vintage", "sweet", "dry" and "fine" which were listed in an annex to the bilateral Australia-EU Wine Agreement. This showed that Members needed to consider the long term implications of extending geographical indication protection which led down an ever descending track to an ambit claim to protect so called "traditional expressions".
145. The Council also needed to discuss exceptions. The TRIPS Agreement contained a number of exceptions to geographical indication protection, relating to terms which had been used for many years, terms which had become generic in nature, the precedence of trademarks, the use of a person's name etc. Australia participated in this discussion on the assumption that in exploring these issues there was no intention of changing these exceptions.
146. Continuing, the representative of Australia said that the Council needed to consider the cultural diversity dimension. A number of Members, including Australia, had received many immigrants who brought with them farming, processing and manufacturing skills, processes and professions. They had begun to grow, process, brew and distil food and beverages and not unnaturally had used the same terms that they had used in their home country. They had not done so out of any desire or intention to engage in unfair competition or to mislead consumers, but rather because such terms were familiar to them and formed part of their cultural traditions. These names and terms had become part of the common language of the countries to which they migrated long before the TRIPS Agreement. During the Uruguay Round, Australia had resisted the extension of Article 23 to products other than wines and spirits to preserve its right to continue using terms that had come to form part of its everyday language through long use and tradition. It was culturally insensitive for Members, predominantly those from which these people had migrated, to try to claim back terms that Australian producers had used for decades. Australia therefore refused to forego names and terms which were part of its multicultural society for the same reason that some European countries did not make GATS commitments in audio visual services: they did not wish to undermine their cultural values. The fact was that many governments used a combination of financial incentives, radio and TV content requirements, tax measures, rules on foreign investment and intellectual property rules to promote their culture, although he was not advocating in the Council new WTO rules to promote cultural diversity. Members should acknowledge the entitlement of governments to regulate to achieve legitimate policy objectives to enhance cultural diversity.
147. Concluding, he said that it was critical that Members consider not only intangible factors, such as cultural diversity and the balance of interests, but also the tangible factor of the costs that extension of protection would entail and the increased legal obligations that would be imposed on Members. He recalled a paper co-sponsored by Australia (document IP/C/W/289) which, among other things, had canvassed the administrative and other cost implications of extending protection to products other than wine. This issue needed further thorough examination.