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

Ambassador Chak Mun See (Singapore)
56. The representative of Australia, introducing his delegation's paper, said that this reflected Australia's concern that it was perhaps overdue for the Council to begin to consider the substance of geographical indication protection. Like any form of intellectual property protection, geographical indications were not protected for their own sake but to serve public policy objectives and, in doing so, to accommodate a balance of interests. His delegation believed that the widely held concerns that geographical indication protection be enhanced and serve better the trade interests of Members were well-founded and deserved serious attention. The Article 24.2 review should therefore become more than just a process of filing questions and answers without the information provided staying unanalysed. It was important for the Council to look at this information, to develop a collective sense of what better protection of geographical indications really represented. To that end, his delegation's paper put forward some considerations about the interests and policy objectives taken up in the protection of geographical indications. It was probably a misleading idea to talk about stronger or weaker protection of geographical indications; one had perhaps better talk about better protection and the Council should be using the wealth of information that the Article 24.2 review had already yielded to explore what better protection meant. The paper also recognized the increasing importance in international trade of geographical indications, especially for the benefit of developing countries, which were understandably increasingly looking to geographical indications as potential intellectual property assets that needed to be nurtured and exploited appropriately. Considering the specifics of geographical indication protection, there was a wide range of interests caught up and, just as for any other aspects of intellectual property rights, no one set of interests should be allowed to prevail and the overall level of protection needed to be determined by an appropriate balance. Australia had set out in its paper some of the factors that it suggested were balanced in this approach, as well as what current elements of the TRIPS Agreement were relevant in achieving that balance, looking at all of the provisions of Section 3 of Part II. There was a need to recall that Article 24 had a number of important optional exceptions to geographical indication protection and the way those operated were illustrated by the case-study the paper introduced relating to the word "orange". In this regard, he pointed out that, while this term had been notified by Australia as a geographical indication, the term happened to be a geographical indication for a number of other countries. However, it was of course much better known as a descriptive term, i.e. a term describing an actual product, or as a surname. This example helped illustrating that no one answer would necessarily apply to individual terms. Terms might also have different signification in different jurisdictions or societies, in translation or simply in different commercial contexts. All these factors needed to be taken into account in finding the appropriate balance of geographical indication protection. How that balance was struck was a public policy matter for each Member to consider at a domestic policy-making level. However, equally, all stood to benefit from learning about the experience of others and this was where his delegation saw a valuable role for the Article 24.2 process. The Council now had a great deal of information before it, which the Secretariat had usefully synthesized. It had to be borne in mind that, when this review began, Members posed over 50 questions of each other concerning geographical indication protection. Australia had noted at the time that this was quite a burdensome, exhaustive process and it had, indeed, required considerable effort for his delegation to produce its answers to these questions. The lack of attention so far to all this information was probably due to the fact that there was no clear framework for moving forward this analysis. Australia would like to suggest such a framework and this was the aim of the questions at the end of his delegation's paper, which related to the provisions of Articles 22 to 24. This was not to suggest that these Articles were necessarily problematic or in need of close textual analysis, but it was to suggest that Members had naturally taken different approaches in their jurisdictions and that these approaches were not well understood. It would perhaps be beneficial if the Council could structure its review of the material produced in the Article 24.2 process based on these sort of general questions. Ultimately, the actual benefits that Members stood to gain from geographical indication protection did not stem from the wording in the TRIPS Agreement, but in the actual protection afforded at a national level. Therefore, it was appropriate to consider the interaction between TRIPS provisions and the actual implementation of these provisions in domestic law and he hoped that this would shed light on approaches of best practice and the most productive models of protection, but also lay the ground work for the other work that would proceed under Section 3 of Part II of the Agreement concerning possible revisions of TRIPS standards.