26. The representative of the United States said that the room document co-sponsored by her delegation set out the basic responses to the Chair's questions and the suggested way forward.
27. Regarding the Chair's first question of what legal obligations would be acceptable for the register to facilitate the protection of GIs for wines and spirits in accordance with the mandate, she pointed out that the mandate did not actually refer to a GI register, but rather to a system of registration for wine and spirit GIs. While these terms had been used interchangeably by all, her delegation would like to emphasize that there was no assumption in the Uruguay Round, and now the Doha Round, that the mandate required a system similar to the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration. In order to see progress in these negotiations, Members had to keep the focus within the parameters of the mandate.
28. To answer the Chair's question, Members had to focus discussions on how to facilitate protection as noted in the question, which did not mean increasing protection as some had suggested. Her delegation agreed that the system of registration could not be so minimal a potential benefit that it did not in fact facilitate protection. However, it would be beyond the object of facilitation to require increased substantive protection of GIs, particularly at the expense of other right holders and users of generic terms. The mandate therefore directed Members to find procedural means aimed at the protection of GIs in the respective domestic systems. Accordingly, she could not agree to proposals that would require a change in how and to what extent the United States decided to protect a claimed GI for a wine or spirit, as this would go well beyond the mandate of facilitating protection. Proposals requiring that entry of a term on the register would be prima facie evidence that it was a GI under TRIPS Article 22.1 would do exactly that, as they sought to achieve a substantive legal effect in the different domestic systems. Instead, Members should focus efforts on developing a system that would assist examining authorities and other officials in their evaluation of whether a designation qualified for protection in that Member according to its domestic laws.
29. She said that keeping within the mandate of Article 23.4 also meant reading this provision in the context of Article 1.1 of the TRIPS Agreement, namely that territoriality needed to be respected for all IP rights, including for GIs. Proposals that sought to require a Member to grant deference to a foreign authority’s finding of what constituted a GI went well beyond the scope of the mandate, and was thus unacceptable to her delegation. In this respect the EC appeared to be seeking an IP system equivalent of a mutual recognition agreement which would go well beyond international agreements in other IP areas. As a particular specific point of concern for her delegation, the EC proposal sought to require in the WTO that a GI notified to the register served as prima facie evidence that, in the absence of proof to the contrary, it met the definition of a GI in all Members where protection was sought. Under this proposal, US examiners would have to defer to the findings of an EC examiner as to whether a GI met the definition in an EC territory and would then be forced to prove that the notified term was not a GI in the United States. This would effectively mean that the EC's interpretation of a key provision in the TRIPS Agreement, namely Article 22.1, was the interpretation to which all Members had to subscribe or prove why they did not. Her delegation could not agree to this shifting of the burden of proof of whether a Member had met a TRIPS obligation. If a Member was concerned that another Member did not meet its Article 22.1 obligation, it should then bear the burden of proving this, not the other way around. The mandate in TRIPS Article 23.4 should not be used as an excuse to negotiate the scope of the definition of a GI set forth in TRIPS Article 22.1. It should also be read within the context of other substantive provisions in the TRIPS Agreement. It had to be clearly understood that the system for facilitating protection for GIs could not undermine the protection for other IP rights, such as prior existing trademarks under Article 16, and should not adversely affect the legitimate use of generic terms and the other exceptions under Article 24.
