90. The representative of Korea agreed with the Chair that the central issue seemed to be how to define the concept of "consulting" the multilateral register. Recalling that the European Communities had argued at previous meetings that a multilateral register without any effect or legal presumption would not be any more than Google, he asked why the register should be more than Google. His delegation was of the view that without the register GIs, in particular the European ones, were already fully protected under Article 23 of the TRIPS Agreement. The register could play a useful role in assisting and preventing authorities from rushing into hasty decisions, thereby facilitating examination, which would eventually lead to the facilitation of protection.
91. In reply to the Chair's first question, he said that what obligation would be acceptable to Korea to facilitate the protection of wine and spirit GIs was very simple, i.e. to consult the multilateral register when making a decision on the protection of a wine and spirit GI.
92. He then explained how the Korean system currently worked. Wine and spirit GIs could be protected as collective certification marks (CCM) for GIs. The CCM system had incorporated Article 23.1-3 of the TRIPS Agreement to prevent the use of a GI identifying a wine or spirit for wines or spirits not originating in the place indicated by the GI in question.
93. Taking the example of a name such as "Saint Emilion", he said that the Register would offer little help. For example, a Korean wine producer applied for a CCM using the name of "Saint Emilion", which had been noted for original protection, to get protection for his wine product. The Korean patent officer would not even have to consult the multilateral Register to check whether the requirements under Article 22.1 and Article 23.1-3 were fulfilled. It would be too obvious for him that "Saint Emilion" was not in Korea. What he would have to do would be to check whether or not Article 24.6 would apply to the CCM application.
94. He said that a multilateral register might, however, be useful in the case of GIs originating from East Asia, where regional names in Korea, China and Japan were very similar to each other. For example, "Andong" was the name of a region in the southern part of the Korean peninsula. A Korean producer applied for the CCM protection of the name of "Andong" for a spirit product. If the Korean patent officer did not consult the multilateral register, he might make an incomplete and hasty decision on granting a CCM to the "Andong" spirit, without checking the applicability of Articles 23.1-3 and 24.4-5. As there were many similar or identical regional names in East Asia, it would not therefore be enough to check the Korean list of names to make a right decision. By resorting to the multilateral register the Korean patent officer would have a chance to check the applicability of Articles 23.1-3 and 24.4-5 and make a more complete and sound decision. The multilateral register could therefore work as a stop barrier to prevent a patent officer in Korea from rushing into a hasty decision. In that regard, his delegation could find a certain usefulness in the multilateral register.
95. As regards the Chair's second question, he said that Korea could not give more significance or weight, if any, to the information in the register than to the information from applicants in administrative procedures or from opponents in judiciary procedures or to the information collected by the patent officer himself. Giving more weight or significance to the information in the register would bring about distortion and absurdity in the domestic legal and administrative system. It fell under the internal decision-making process of patent offices or patent judges how much weight or significance should be given to information from every source to decide whether or not a name in question was a GI under the definition of Article 22.1. Some Members might object that the protection of a wine or spirit GI would not be guaranteed under the discretionary power of a patent office. However, this was in accordance with the principle of territoriality. The same criticism of discretionary power could equally be applied to the register as being only a collection of discretionary decisions by Members to notify their GIs.
96. To explain how giving more significance or weight to the multilateral register would actually distort the notification system and lead to logical absurdity, he gave an hypothetical case. A Chinese producer filed a challenge before the Korean patent administrative committee against the CCM of "Andung Soju" for a Korean spirit on the grounds that there was an identical or similar name from China which was already registered in the register. Under the TN/C/W/52 scheme, the Korean government should examine whether or not it should revoke its own decision regarding whether the name fell under Article 22.1. The example showed that it would be reasonable to ask the claimant to substantiate his claim or to consider competing information on an equal footing without presuming the superiority of one piece of information over another one.
