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

Ambassador C. Trevor Clarke (Barbados)
European Union
B.i Cluster 1 (Legal effects and participation)
122. The representative of the European Communities said that Canada's question regarding how the Ruritania example would be implemented in 27 member States of the EC, and in the other WTO Members, would require a consultation of several months with several institutions in 153 Members, which would result not only in confusion, but also in a long delay of this negotiation, which was not the objective. While it was not possible to answer in advance how these concepts would be applied, he pointed out that the concepts of "prima facie evidence" or "absence of proof to the contrary" in the proposal were nothing new. 123. The delegation of the United States had asked a technical question on the priority date which he might not have fully understood. However, while there would certainly be a date when the GI was notified to the register, this date would not be the date of automatic protection in the national system, because there would be no automatic protection. 124. New Zealand had asked whether domestic authorities could refuse a term as non-compliant with the definition of a GI without proof of the contrary. The answer was no, because "the prima facie evidence" meant evidence "in the absence of proof to the contrary". Therefore, if there was no proof to the contrary, there was indeed evidence that the term met the definition. This did not, however, mean that the GI would be protected because other elements such as exceptions could still apply. 125. New Zealand had further requested examples of European GI producers that had encountered problems. In this respect he said that, first of all, these were private company matters for which this meeting was not the proper arena of debate. Secondly, and more importantly, he believed that it was not really relevant. As he had explained, either there were no cases where the burden of proof had been put on the GI right holder to prove that a term was not a generic, in which case the proposal would not change anything, or if it were these cases, then it did not matter where, when, and by whom, and the TN/C/W/52 proposal was correct in addressing this issue. 126. Regarding the question by New Zealand on why the proposal addressed only genericness and not the other exceptions of the TRIPS Agreement, he said that his delegation could not be accused of upsetting the checks and balances of GI protection with the other exceptions. However, the main reason to single out the genericness had been the cases reported by European producers of the problem of reversal of burden of proof regarding genericness.