110. The representative of Australia said that the process of reservations in paragraph 3.1 to 3.5 of the EC proposal raised a number of questions: the burden this registry would place on Members; the limitations this register would place on Members’ existing rights under the TRIPS Agreement, including in relation to exceptions; the implications for IP laws; and, importantly, the workability of the register. Overall, the EC proposal appeared to require Members to pursue reservations regarding, and negotiations on, what had traditionally been private rights to be determined and enforced at the national level in each Members' individual territory. This would go against the well established norm, expressly recognized in the preamble of the TRIPS Agreement, that intellectual property rights were private rights. Geographical indications, like trademarks, were commercial rights, so Members needed to provide a legal framework in which these rights could be sought, contested and defended. However, Members should not be required to lodge reservations and enter into negotiations on behalf of every private interest in its territory that could be affected by the registration of foreign geographical indications, which would be burdensome for Members, whether developing or developed.
111. He further said that the EC proposal limited the existing rights of Members under Articles 22 and 24.6 of the TRIPS Agreement. Currently, a Member was required to protect in its territory geographical indications meeting the definition of Article 22.1 of the Agreement, but was not required to protect geographical indications of other Members when these terms were generic in its territory. However, under the EC proposal Members would have to lodge reservations in order to avail themselves of this right to decline protection on the ground that the term had become generic. To duly substantiate that ground, it would be required to enter into compulsory bilateral negotiations with the notifying Member, if so requested, aimed at resolving the disagreement. This would prejudice existing rights of Members under the TRIPS Agreement, which would be inappropriate in the context of a negotiation to facilitate the existing level of protection for geographical indications for wines and spirits. Who would determine whether a term was or was not generic? How could this be determined through negotiations when such a question was market specific – in other words a territorial matter? This language of the provision on registrations, which talked of resolving disagreements, was therefore misleading, for it was not necessarily the case that by making a reservation a Member would be disagreeing with the notifying Member. Rather, it could be the case that each Member’s rights were legitimate and valid under the TRIPS Agreement. For example, a GI could be protectable, but due to the genericness exception of the Agreement, the Member where the term had fallen into common usage could decline to protect it. National courts must remain the ultimate arbiters and the principle of territoriality must therefore remain the basis for the recognition and protection of geographical indications. Despite what the European Communities had said, his delegation continued to fail to understand how the proposed EC system would guarantee that fundamental principle. What the EC proposal seemed to do was alter the underlying substantive rights and obligations of Members under Section 3, Part II of the TRIPS Agreement by requiring them to negotiate on their ability to make use of existing exceptions for each product, whilst characterizing the negotiations as being in favour of increased protection by reference to the link made to Article 24.1 of the Agreement, a link his delegation had always rejected.
112. He concluded by asking the European Communities for some clarifications. What was the purpose of the negotiations? Why did Members need to lodge reservations and enter into negotiations to exercise certain exceptions, such as the one under Article 24.6 of the Agreement, but not others, such as those in Articles 24.4 or 24.5 of the Agreement? What would be the effect of a reservation not withdrawn at the end of the 18-month period? He would assume that a Member could decline to protect a foreign geographical indication in respect of which it had lodged a reservation, but would like to have this confirmed.
