65. The representative of Switzerland congratulated the Chairman on his election and thanked Ambassador Tan for the work she had accomplished between December 2009 and February 2010, and for the report she had just presented. She also welcomed the Chairman's proposal on the way in which the Special Session should conduct its work as being very appropriate, and assured him of Switzerland's support and active participation in the discussions in order to help Members to move forward.
66. She said that, like other sponsors of TN/C/W/52, Switzerland saw the proposal on the register as one of the three elements of TN/C/W/52 which should be dealt with in parallel, GI extension, TRIP/CBD disclosure and the register. Her delegation's position was that the register negotiated in the Special Session should be developed to extend to all products. It was for all these reasons that Switzerland had reduced its ambitions and made concessions on the register throughout the negotiations and had joined the current compromise proposal contained in TN/C/W/52.
67. In order to respond to the first two questions circulated by Ambassador Clarke, and to have a more substantive debate at this very meeting, she wished to emphasize two important elements with respect to the effects of registration: the register to be developed should contain, first, an obligation to consult the information contained in the register and, secondly, an obligation to duly take that information into account. With regard to the second element, the proponents of TN/C/W/52 had not hitherto received assurances from those Members supporting the TN/IP/W/10/Rev.2 proposal: while it was her delegation's understanding from the oral explanations that the information on the register would be taken into account at the national level, that had never been made clear in any written explanations. In contrast, the sponsors of TN/C/W/52 had explained the legal framework of how this information needed to be taken into account, mentioning the prima facie evidence and the need to substantiate claims on the generic character of a GI.
68. She said that, with regard to TN/IP/W/10/Rev.2, her delegation continued to confront a proposal that called for the establishment of a simple database as a source of information that Members' authorities might or might not consult, and, even if they did consult it, it was not clear which consequences they would attach to the consultation. Her delegation believed that, to respond to the mandate of facilitating the protection of GIs, it seemed essential after so many years of negotiations to foresee at least that, beyond the simple obligation to consult a source of information, Members should provide some clear assurances that the national authorities responsible for GIs - judges, trademark examiners or other authorities – would have the obligation not only to consult the information in the register but also to take due account of this information when making decisions by giving it all the necessary weight. This meant specifically that, when an authority took a decision not to take account of the information on a given GI in the multilateral register, it had made such a decision after having examined the legal situation of the GI in the country of protection, taking into consideration, for instance, other uses or rights which could be in conflict with that GI. Such uses or rights could be, for example, prior trademarks, the fact that the GI was the generic name of a product, or grand-fathered uses. Such elements could, for instance, be dealt with in some trademark examination guidelines requiring national authorities to take them into account. The effects that her delegation was envisaging regarding registrations would actually be to ensure that the authorities would carry out their work diligently.
69. In response to Australia's explanations regarding its opposition procedure, she agreed that this was a useful procedure, but said that the one-sided burden on the GI right holder to monitor all trademark applications in other countries implied considerable work which many producers would not be in a position to carry out. This meant, in consequence, that the authorities had to be more proactive in doing work that would facilitate the protection of the rights of GI right holders. Swiss producers had already highlighted the difficulties they were facing in monitoring the use of trademarks throughout the world, and this would be even more difficult for right holders in developing countries. Her delegation believed that the multilateral register had a useful role to play in that context.
70. She added that the legal effects of a register that Switzerland would like to have would facilitate the protection of GIs without preventing the application of the exceptions under TRIPS Article 24 and without questioning the principle of territoriality as the final decision – as pointed out by New Zealand and Canada - would always be taken at the national level of the country where the question of protection of a particular GI arose. There was no automatic protection effect for GIs resulting from the TN/C/W/52 proposal.
71. On the question of participation, Switzerland believed that there was no intermediate solution between mandatory or voluntary participation and that therefore, in response to the question identified by Ambassador Clarke, her delegation believed that criteria established for the examination of protection of GIs would have to be accepted by all Members, and for the register to be multilateral it would have to have effect in all Members. Members would nevertheless be free whether or not to notify their GIs.
