150. The representative of Argentina said that the Hong Kong, China proposal to shift the burden of proof would substantially alter the balance of rights and obligations under the TRIPS Agreement. In fact, it was only in Article 34 of the Agreement that the reversal of the burden of proof was expressly provided for process patents. The existence of these presumptions seemed to be in contradiction with the recognition in paragraph 4(a) of Section D of the Hong Kong, China proposal that the exceptions under Articles 22 to 24 of the TRIPS Agreement continued to be fully applicable by domestic courts.
151. With regard to the EC proposal, she said that the substantive legal effects it applied to participating Members were not foreseen in the current standards of the TRIPS Agreement. The requirement set out in paragraph 4(c) of the EC proposal for both participating and non-participating Members to notify all trademark registrations and applications containing or consisting of a geographical indication, if so required by the notifying participating Member, would be an additional burden to all Members. Her delegation failed to understand the rationale of such a requirement.
152. She recalled that under the EC proposal there would be effects on non-participating Members which had not lodged a reservation.
153. As to paragraph 6 of the EC proposal regarding LDCs, she said that the joint proposal did not have any similar provision precisely because, unlike the EC proposal, it would result in minimum costs to the participating Members. In fact, the EC provision seemed superfluous in light of the transitional period LDCs were currently enjoying under Article 66.1 of the TRIPS Agreement. Hence, she wondered what would happen when these LDCs started to apply this system at the expiry of their transitional period? Would they have to protect all the pre-existing registered geographical indications? Or would there be a special system for LDCs to lodge reservations even before the expiration of their transitional periods? If that were the case, would that mean that during the transitional period LDCs would be able to place reservations but not to notify geographical indications?
