23. The representative of New Zealand congratulated the Chairman on his appointment and expressed his support to the Chairman for his proposal on the way forward. He also thanked Ambassador Tan for her constructive and useful work over the past months.
24. On questions one and two of the Chair's list of four questions of October 2009, he referred Members to the responses contained in a room document circulated on 23 October 2009 to the Chairman's questions by the delegations of Argentina, Australia, Canada, Chile, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Japan, Korea, New Zealand, Nicaragua, Paraguay, South Africa, the United States and Uruguay. With respect to the first question regarding the consequences that should flow from an entry on the international register, the room document noted the two general approaches that were on the table, namely that (a) an entry should result in better information being available to and used by decision makers and national systems, and (b) that an entry should result in a legal presumption in national systems. As set out in the document, New Zealand considered that a legal presumption was not acceptable for a number of reasons: firstly, a legal presumption would increase the legal protection for GIs, and this would be outside the scope of this negotiation, which was only about facilitating protection; secondly, a legal presumption would violate the principle of territoriality; and, thirdly, a legal presumption would alter the balance of rights and obligations in the TRIPS Agreement.
25. The joint proposal (TN/IP/W/10/Rev.2) had suggested an obligation for Members to consult the register when making decisions regarding trademarks and GIs. Such an obligation would ensure that better information would be made available to decision-makers in domestic systems to facilitate the protection of GIs notified to the register.
26. With respect to the second question on the significance and weight that domestic decision makers should give to the information on the register, he said that this was a complicated legal issue which varied from case to case and according to the functioning of Members' different systems. There clearly was a fundamental difference between the two approaches on the table regarding whether or not domestic decision makers should be left with the flexibility to weigh information appropriately in accordance with their domestic systems. Under the TN/C/W/52 proposal, that weight was actually predetermined and that ensured that the substance before the decision makers was biased towards a particular outcome.
27. For instance, when faced with conflicting claims as to whether a term was a GI or a generic term under the TN/C/W/52 proposal, it was his delegation's understanding that the party seeking the intellectual property right (IPR) would be at a significant advantage because the burden of proof would be on the party arguing that the term was generic. This allocation of the burden of proof was clearly the wrong way round and went against the nature of IPRs. He said that IPRs created monopolies for right holders, and were therefore exceptions by their very nature. The quid pro quo for that monopoly was that those seeking the monopoly had to bear the burden of proving that they were entitled to it. The burden of proof should not be on users of generic terms.
28. In terms of the way forward, the room document circulated in October 2009 contained a practical approach for Members to exchange information regarding how decision makers in domestic systems would consult the register and what mechanical steps they would take. Some Members had already reported to the Special Session in this regard and he noted that the minutes of the Special Session of June 2009 contained a detailed record of information from Canada and other Members, including Japan, New Zealand and Korea, regarding the practical details for the implementation of the register in their systems. He said that this kind of practical engagement was still lacking from the sponsors of TN/C/W/52.
29. The European Union had described in June 2009 how the TN/C/W/52 proposal would be implemented in a fictitious country called "Ruritania". New Zealand considered this example too abstract and therefore not particularly helpful. It would welcome hearing about how its main trading partners such as the European Union, Brazil, India, and the United States would implement the proposal.
30. With regard to the European Union's written replies to questions posed by several Members in 2009, he said that, while those written responses had been useful, they had remained at a somewhat abstract level, and with regard to the crux of the issues the answer had invariably been that this would depend on domestic procedures. He said that, while these issues should depend on domestic procedures, it would nevertheless be helpful to have a detailed account from individual Members regarding what those national procedures were and how a register would be implemented in those procedures. This was the idea behind the suggestion to examine the practical details of implementing the proposals in different systems that most Members seemed to find useful. He expressed his delegation's support of the Chairman's intention to incorporate this aspect into the Special Session's work.
31. He said that his delegation also recalled with interest a statement by Brazil made in October 2009, that while Brazil had had no intention of negotiating away the exceptions of prior trademarks and genericness, it had nevertheless been satisfied that the proposal contained in TN/C/W/52 had taken into account its concerns. He invited Brazil to share with Members some practical information regarding how its domestic system for the protection of GIs would take into account prior trademarks and genericness as well as the reasoning and judgement that had assured Brazil its concerns about prior trademarks and genericness had been accommodated in the TN/C/W/52 proposal.
