110. The representative of Hong Kong, China recalled that her delegation had submitted four hypothetical cases. She would describe the first three.
111. The first case would be a non contentious notification and registration of a GI from a participating WTO Member, at both the domestic and international levels. WTO Member X had a community which produced a wine carrying the name of the area, "Ubique", in which it was produced and had achieved repute through its link to its area of origin. Through a domestic system determined entirely by Member X, the local production organization controlling the use of the "Ubique" name (Production Organization) had been recognized by Member X. Member X, or the Production Organization with the consent of Member X, would request registration of the geographical name "Ubique" in the WTO GI Register for Wines and Spirits (WTO GI Register). In putting forward the request, Member X or the Production Organization asserted, amongst other things, (1) that the name "Ubique " was a name capable of serving as a GI in accordance with the definition in Article 22.1 of the TRIPS Agreement; (2) that the Production Organization was the sole owner of that GI; and (3) that the name "Ubique " was protected by the domestic law of Member X and had not fallen into misuse in the territory of Member X. Member X or the Production Organization, as the case might be, transmitted the request for registration of the name "Ubique" by electronic means to the administering body of the WTO GI Register. Upon receipt of the notification and the requisite registration fee, the Register undertook a formality examination only. No enquiry was made into the substance of the claims in terms of ownership or ability to operate as a GI. A certificate of registration was issued to Member X or the Production Organization and the name "Ubique" was placed on the WTO GI Register, which could be searched through the Internet at any time by any interested party. Provided that the required renewal fees were paid at the specified times, the name "Ubique" could remain on the Register indefinitely. If there was any change of particulars of the GI, e.g. a change of ownership of the GI, either Member X or the Production Organization was under a duty to notify the administering body of such amendments. The administering body of the WTO GI Register would then have to update or amend the WTO GI Register upon the payment of a specified fee by Member X or the Production Organization. Some time later a case of alleged infringement of the GI "Ubique" arose in WTO Member Y, which had volunteered to join the WTO GI registration system, but did not file any notification of contrary evidence that (1) Member X or the Production Organization was not the owner of the GI right in "Ubique"; or (2) the relevant GI did not satisfy the definition of GI in Article 22.1 of the TRIPS Agreement; or (3) the relevant GI was not protected in Member X. As with any Member that volunteered to join, Member Y had enacted legislation to protect GIs, under which it was specified that a court of law in Member Y, in determining the nature and/or ownership of a GI, would have to accept registration of a GI in the WTO GI Register as evidence and treat the following elements as proven: (i) ownership of a GI right; (ii) the relevant GI satisfied the definition of GI in Article 22.1 of the TRIPS Agreement; (iii) the relevant GI was protected in the country of origin, unless sufficient evidence to the contrary was adduced by the relevant respondent WTO Member or the Production Organization. In bringing its legal action for infringement in the court of law in Member Y, the owner of the GI "Ubique" from Member X was therefore able to enjoy the benefit of a presumption that the three elements would be treated as proven. If the other party adduced evidence to the contrary, then the court of law would weigh the totality of evidence adduced by both parties, and decide whether the elements in question were provided to the standard required in the proceedings.
112. The second hypothetical case related to a contentious GI which was resolved at the domestic level before notification and registration at the international level from a Participating WTO Member. WTO Member X had a community which produced a wine carrying the name of the area, "Ubique", in which it was produced and had achieved repute through its link to its area of origin. However, two different groups in Member X had long been in dispute over the ownership of the name "Ubique". One of the disputing parties, the Ubique Wine Manufacturers' Association, requested Member X to register the geographical name, "Ubique", in the WTO GI Register. However, Member X would not agree to put forward the request on the grounds that the ownership of the name "Ubique" had not been resolved within Member X itself. After the two disputing parties had resolved the GI dispute before the court of law in Member X and the first party's ownership was upheld, then on the basis of this judicial decision the first party requested Member X to register the geographical name "Ubique" in the WTO GI Register. Member X or the first party transmitted the request for registration of the name "Ubique" by electronic means to the WTO GI Register.
113. The third hypothetical case related to a non-protectable GI that had been screened out by a Participating WTO Member at the domestic level. Member X had a community which produced a wine that carried the name of an area, "Ubique", in Member X. A single body controlled the use of the name "Ubique" within Member X. The body requested Member X to register the name "Ubique" on the WTO GI Register. However, the competent authority in Member X reached the view that, although the name "Ubique" was a geographical name, the wine's reputation or quality or characteristics did not arise from an association with that geographical area, but rather were a form of branding using the name of a famous location. Member X therefore refused to seek registration of "Ubique" on the grounds that the name was unable to serve as a GI as defined in Article 22.1 of the TRIPS Agreement.
114. She expressed the hope that these hypothetical case studies could help focus the discussion on more concrete situations and get a clear understanding of the working of the proposed GI register.
115. She further said that these hypothetical case studies would also answer the Chair's question on "facilitation" and would clarify how the information would be taken into account, what would be the consequence, and how the parties could share responsibilities.
