32. The representative of Canada congratulated the Chairman on his election and thanked Ambassador Tan for her excellent contribution over the past months. As a proponent of the joint proposal, Canada was in favour of a multilateral register for wine and spirit GIs and could accept as legal effect an obligation on domestic decision-makers to consult the register when making decisions regarding the registration or protection of trademarks and geographical indications for wines and spirits. In order to seek greater clarity as to how protection would be facilitated, Canada had suggested that Members exchange information regarding how decision-makers would take this information into consideration. To this end, Canada had made a comprehensive presentation on the implementation the joint proposal register by Canada at the June 2009 meeting, describing how the information on the register would be taken into account in its national decision-making process. In preparing for this meeting, her delegation had attempted to assess the GI register elements contained in the TN/C/W/52 proposal but had been unable to determine how these elements could be implemented in Canada.
33. She said that unfortunately the TN/C/W/52 proposal seemed to raise more questions than answers. It was Canada's view that to merit consideration a proposal should include all relevant elements and not leave them for future discussions. For Canada, the TN/C/W/52 proposal was not a proposal for the establishment of a register as such, but rather a text for modalities seeking to link this issue, for which there was a clear negotiating mandate, with other intellectual property issues designated by Ministers as implementation issues. Her delegation was willing to advance the negotiations on the register, but was concerned about prejudicing progress by linking it with other issues, as this approach could and would not benefit the wider Membership.
34. The only known elements of the TN/C/W/52 proposal, such as the legal presumption that the registered term met the definition of geographical indication, were clearly outside their mandate. Among other things, this presumption created an imbalance between the right holder of a GI from a given country and the other parties in the country where protection is sought, as it did not put everybody on an equal footing. Under the TN/C/W/52 proposal, a domestic right holder would need to satisfy domestic procedures, including demonstrating that a term met the definition of geographical indication to obtain protection, while foreign owners of GIs would be exempted from that requirement as they would benefit from a legal presumption. She said that this kind of reversed or distorted national treatment was only one of several concerns about that legal presumption.
35. Another concern was the extra-territorial nature of the TN/C/W/52 proposal. For instance, several years ago Canada had entered into negotiation on wines and spirits with the European Communities1 and had been presented with some 10,000 names of GIs recognized in Europe, in other words: names presumed to be GIs. At the end of a difficult and time-consuming exercise in which each of those names was diligently examined by the Canadian authorities to see whether it referred to a geographical area, and whether it was actually protected in their country of origin, the list was reduced to only 1,500 names that could qualify as GIs. While this process had been time-consuming and laborious, one could imagine how much more difficult and onerous it would be if Members were required to reverse a legal presumption in line with the TN/C/W/52 proposal. Members were being asked to recognize in their legal system decisions taken in other legal systems over which they had no control. While the representative of the European Union had pointed out the need to avoid uncertainty, it was her delegation's view that the EU proposal actually provoked uncertainty. In the example she had provided, the number of GIs had been considerable but the principle remained the same, no matter how many GIs a Member was asked to recognize. She said she doubted whether all Members would have the resources to undertake a similar exercise.
36. In concluding, she said that her delegation wished to move forward with the negotiation on the GI register for wines and spirits. Canada's view, endorsed by the Canadian industry, was that the GI register for wines and spirits would be a valuable tool that would benefit Canadian producers. While the TN/C/W/52 proposal was incomplete and outside the mandate, the joint proposal addressed all the elements required for the implementation of a register, respected the mandate and therefore constituted the best basis for continuing the negotiations.
