156. The representative of New Zealand recalled that under the joint proposal Members that had chosen to participate would make a commitment to consult the database when making national decisions about registering geographical indications for wines and spirits. This was indeed a new substantive and meaningful obligation that would apply to all participating Members without prejudicing existing rights and obligations under the TRIPS Agreement. Under the joint proposal there were no legal consequences for non-participating Members, who would, however, have free access to the database.
157. In contrast, the EC proposal was putting forward significant substantive obligations both on participating and non-participating Members. For participating Members, the registrations would enable GI holders to exercise a presumption of protection in the territory of participating Members, a presumption which would be irrebuttable as far as the exceptions under paragraphs 4 and 6 of Article 24 of the TRIPS Agreement were concerned. Under the EC proposal, even for non-participating Members, the effect was the removal, after a certain time, of their right to use certain flexibilities within the existing TRIPS Agreement. If those were indeed the impacts of the EC proposal, then her delegation would perceive such an erosion of rights as being inappropriate in the context of the negotiation on a register of geographical indications for wines and spirits. Similarly, the Hong Kong, China proposal envisaged that as a result of the performance of a simple formality check, registered terms would enjoy the status of prima facie evidence before the domestic courts and authorities of Members regarding three crucial elements, namely the ownership of the geographical indication, whether it met the Article 22 definition and whether it was protected in the country of origin. Therefore, her delegation believed that both the EC and Hong Kong, China proposals would substantially changed the balance of rights and obligations under the TRIPS Agreement and they would, in fact, serve to enhance rather than facilitate protection of geographical indications. Shifting the burden of proof away from the right holder, where it traditionally and logically belonged, would impose higher costs on those producers seeking to avoid disruption of trade. This reversal of the burden of proof would also place geographical indications at a higher level than any other form of intellectual property. Why should geographical indications benefit from presumption of protection when other forms of intellectual property did not?
