149. The representative of Hong Kong, China said that "consequences of registration" was certainly one of the most important elements of the system being negotiated in the Special Session. While it would be relatively easy for Members to see the differences in terms of consequences between the Hong Kong, China proposal and the joint proposal, it might be more difficult to see the differences between his delegation's proposal and the EC one, because both proposals provided for a "rebuttable presumption". Firstly, under the Hong Kong, China proposal, and unlike the EC proposal, only Members participating in the system would be required to give legal effect to a registration. Secondly, under the Hong Kong, China proposal the rebuttable presumption that a registration would entail related to three specific issues, namely ownership of the geographical indication, that the indication satisfied the definition under Article 22.1 of the TRIPS Agreement in the notifying country, and that it was protected in its country of origin. There was no time limit attached to these rebuttable presumptions. On the other hand, the presumption under the EC proposal seemed to extend to other elements, and for those Members who had not lodged a reservation within the 18-month period, presumptions relating to paragraphs 1 and 4 of Article 22 and paragraph 6 of Article 24 of the TRIPS Agreement would become irrebuttable. His delegation believed that issues like genericness under Article 24.6 of the Agreement should be decided by domestic courts of each Member according to their domestic legislation, taking into account local circumstances. In contrast, under the EC proposal a registration would create an irrebuttable presumption with regard to the exception under Article 24.6 if, for example, a Member had not lodged a reservation within the 18-month period. Finally, he noted that paragraphs 3.3, 4(c) and 5(b) of the EC proposal provided a procedural requirement, whereby a WTO Member would have to notify conflicting trademark registrations and applications at the request of the notifying Member; this would enable GI owners to extend the scope of their rights in different jurisdictions in view of existing trademark rights and to take action to protect their rights. His delegation believed that on this particular issue it would be more reasonable to provide that the burden should be on the GI owners themselves to search for conflicting trademark registrations and applications in the market they wished to enter. This was the case for existing trademark owners in places like Hong Kong, China, where geographical indications were protected as trademarks.
