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

Ambassador Boniface Chidyausiku (Zimbabwe)
97. The representative of Argentina said that her delegation was one of the co-sponsors of the joint paper introduced by Australia (document IP/C/W/289) and she drew attention to the fact that there were developing countries that supported the view it presented. In order not to prolong the discussion on the elements contained in the paper, which Australia had already introduced, she only highlighted what she believed were the most important points. The joint paper presented the legal aspects involved as well as the practical ones in a balanced way. Various delegations at previous meetings had referred to these without bringing forth any additional or substantive elements. Paragraph 3 clearly indicated that the extension of additional protection to other products necessarily involved a re-opening of the Agreement, that was to say that extension of additional protection could only be negotiated in a new round when all Members so agreed. The paper referred to practical consequences or costs of any extension, its effects on trade and its effects on consumers, and detailed elements which would contribute to a serious and substantive discussion, both to analyse and understand the subject and its consequences. The paper presented a non-exhaustive list of practical consequences, that is the effects on trade and consumers that an extension of protection could occasion. The analysis listed issues that had to be taken into account in any discussion of this item. She then turned to the legal aspects, although some delegations did not think this was appropriate, because in any rules-based organization with a dispute settlement mechanism they could never be left aside or forgotten. The TRIPS Agreement established in its Article 1.1 that "Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement" and that "Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice". As a result, it was astonishing that paragraph 17 of the earlier joint paper proposal in document IP/C/W/247/Rev.1, asserted that the fact that Members fulfilled their obligations to protect geographical indications by means of a variety of systems had led to imbalances and legal uncertainty. The existence of diversity among systems was a fundamental element that the negotiators of the TRIPS Agreement took into account when they drafted the Agreement. The objective of the Agreement had been to establish minimum standards of protection and not a harmonized system. This had not only occurred in the case of geographical indications but also other rights, including patents. No-one could doubt the various national systems of protection of these other rights. The earlier joint paper asserted that this situation generated uncertainty. If this were so, it affected not only geographical indications but the whole Agreement. The eligibility for protection of a geographical indication was a matter for national legislation and this was one of the important flexibilities, or rights acquired, under the Agreement about which so much had been said at the present meeting, for example under item N, and which should not be lost. The general rule of protection of geographical indications for the whole universe of products was in Article 22, that is Article 22 constituted the general principle that determined the protection for all products protected by geographical indications. In Article 22, the right granted was explicit. Article 23 circumscribed the additional protection to only two products, wines and spirits, and, as such, it constituted an exception to the general rule which was the protection granted by Article 22. Therefore, her delegation understood that to extend the protection granted as an exception for two products to the whole universe of products represented an alteration of the scheme of protection established in the Agreement. In other words, extension of protection meant creating new rights and this could not be done without a mandate, and without reopening the Agreement. For Argentina, it was clear that the creation of new rights could only occur in the context of a new round of negotiations, if Members agreed to include the subject, and the creation of new rights could not involve only one section of the Agreement. During a meeting of the WIPO Programme and Budget Committee in April 2001, Argentina had voiced its concern that delegations who pushed this subject in the WTO systematically refused to discuss technical aspects and cut back on fora for discussion. Doubtless, it did not assist in reaching common understandings to cut back fora for discussions especially since in those fora it was possible to deal with subjects in a perspective that permitted Members, unfamiliar with this type of right, to understand and grasp the issues. Turning to the discussion in the present meeting of the joint paper which Argentina had co-sponsored, she had observed a general tendency in the criticisms to present examples of bad faith use of geographical indications. The objective of the joint paper had rather been to deal with legitimate uses of geographical indications. She reminded those delegations who had made comments that, in addition to uses in bad faith or counterfeiting of geographical indications, which no-one was defending, there was also continuous use, use of generic terms and homonymous geographical indications, all of which constituted absolutely legitimate uses of the geographical indications of other countries.