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

Ambassador Boniface Chidyausiku (Zimbabwe)
114. The representative of Australia thanked all those delegations which had provided comments on the paper which she had introduced (document IP/C/W/289) and looked forward to responses to the questions that it raised. She responded to some comments, and said that she would at the next meeting respond to others. The paper had argued, in relation to market access for new and emergent industries, that use by another producer of a geographical term would amount to misappropriation of another's right. Responding to Hungary's comment that the same argument, applied to patents, would lead to dangerous waters, she said that this assertion completely ignored the existence of Article 22, a provision agreed to by all Members at the conclusion of the Uruguay Round. The paper she had introduced said that Article 22 contained the optimal balance among various competing interests, having at its core the legitimate objectives of preventing consumer deception and unfair competition. The paper did not suggest that Article 22 level protection should be weakened. Indeed, it reaffirmed the intrinsic value of geographical indications. In light of Article 22, her delegation did not see how the use of geographical terms in a manner consistent with that provision could be a misappropriation, or could in any way be analogous to patent infringement. The same reasoning applied to any suggestion that free and fair imitation of products was inappropriate. Responding to Hungary's request for information concerning the application of this principle to other intellectual property rights, she noted that, for example, fair use exceptions had long been recognized in the field of copyright. She noted that Articles 13, 17 and 30 provided for limitations and/or exceptions in each of the major intellectual property right categories in recognition of the need to strike an appropriate balance between competing interests. Responding to those delegations which had said that extension of Article 23 to other products was necessary to reap the benefits offered by geographical indication protection. She highlighted paragraphs 11 and 12 of the joint paper and paragraph 3 of the attachment, which noted the effectiveness of the protection offered under Article 22 to all goods and underlined the fact that this provision, far from minimizing the intrinsic value of geographical indications, operated in a balanced way to allow Members to promote trade opportunities. Article 22 permitted Members actively to market their products in a manner that did not impede trade or minimize the authenticity of geographical indications. The paper she had introduced encouraged Members to consider very carefully whether, on a cost/benefit analysis, extension of Article 23 to other products was, in fact, worth it. It was the co-sponsors' considered view that it was not. They would not like to see other Members signing on to change the current TRIPS rules that would not deliver the advantages that were claimed.