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

Ambassador Eui-yong Chung (Korea, Republic of)
C.i Definition of the term "geographical indication" and eligibility of geographical indications for inclusion in the system
43. The representative of New Zealand welcomed the Chair’s statement that the work of the Special Session needed to proceed within the Doha mandate. She said that the definition of a geographical indication was a crucial concept for her delegation. It influenced her delegation's thinking, to greater or lesser degrees, on all of the other elements of the register, particularly its legal effect. A clear understanding of this concept was needed in order to complete the Special Session's work. Her delegation did not share the view that, as some had suggested, the issue of definition could be resolved through a case-by-case examination of the terms notified and registered, i.e., after the negotiations in the Special Session. Given the sheer volume of terms expected to be registered, i.e., thousands, this would simply be an insurmountable task for a country like New Zealand. Her delegation agreed that the starting-point for a definition must be that contained in Article 22.1. However, as seen from the TRIPS Council's discussions on extension, there was no common understanding on how to interpret it. Some Members took an extremely far-reaching and expansive approach to that definition, which stretched well beyond the standards of the TRIPS Agreement. Incorporation of such an approach to the definition under the EC-style register would in effect be imposing a definition of Article 22.1, which was not a requirement in the TRIPS Agreement, on other countries who took a very different view of the scope of the definition. It was clear that Members had very divergent views on that. Unfortunately, there had been some reluctance from certain Members to engage in a good discussion of these differences. 44. First, would terms using non geographical names fall under the TRIPS definition and thereby be eligible for notification and registration? Her delegation had doubts on that point, including with respect to how one would establish a clear link of such non-geographical names with the definition in Article 22, and asked for further consideration of that point. 45. Second, would the definition allow the protection of a specific process or production method under the guise of a geographical indication? She referred to the example of "bresaola", which was protected as a geographical indication in the EC and associated with the geography of Italy. However, the raw material - meat - came from outside that geography, often from Argentina. It was the production and processing method which was reserved for exclusive use with the geographical indication. Her delegation questioned whether such a replicable production process had an inherent link to a geographical origin. Also at issue with respect to an expansive definition were the issues that had been raised both in the regular session of the TRIPS Council and in the TBT Committee concerning an attempt by the EC to reserve certain generic production-related terms or descriptive terms, the so-called "traditional expressions", and certain packaging configurations to certain individual geographical indications. Obviously that greatly restricted labelling and trade options for producers not associated with those geographical indications. However, that was also an issue in the context of discussions on the register. For example, if Members accommodated that sort of expansive, discretionary and flexible definition of geographical indications and if a term such as "Port" was registered, then the other concepts, terms and production processes that had been reserved for exclusive use by that geographical indication, for example "ruby" or "tawny", might also benefit from the legal effects flowing from the register. Would those terms de facto end up on the register? If that were the case, it would result in the perverse situation where, under an EC-envisaged register at least, New Zealand would have to protect such terms, customary and belonging to all speakers of the English language because of the appropriation, through regulation, by another geographical indication from a country, for example Portugal, with whom New Zealand shared no common linguistic or cultural traditions. Not only did that frustrate the ability of New Zealand producers to have access to such generic terms, processes and labels, but it would also frustrate the ability of, for example, Australia to do the same in the New Zealand market. That approach to the definition was something which was simply unacceptable to her delegation. 46. Another key issue associated with the definition related to the use of a country name as a geographical indication. The TRIPS Agreement clearly provided for this. However, some Members continued to deny her country's right to use its own name, "New Zealand", as a geographical indication. Her delegation would be seeking confirmation in the notification and registration system's treatment of the definition for that right to use a country name as a geographical indication to be confirmed and operationalized. 47. Lastly, she associated her delegation with the views of Australia on the issue of territoriality.