39. The representative of Hong Kong, China congratulated the Chairman on his election. She said that Hong Kong, China supported the proposal by the Chairman on the way forward and would continue to help facilitate the negotiations.
40. With regard to the first two of the Chair's four questions posed in October 2009, concerning legal effects and the significance and weight that national authorities should give to the information on the register, she recalled that her delegation had developed four hypothetical case studies illustrating how the Hong Kong, China proposal would function. These case studies had been circulated in a room document and presented by her delegation at the last meeting on 28 October 2009. The first case dealt with a non-contentious notification and registration of a GI from a participating Member at both the domestic and international levels. The fourth case, which actually followed on from the first scenario, dealt with a contentious notification and registration at both the international and domestic level, where the issue was finally resolved at the domestic level in another participating Member.
41. She said that she would not repeat the facts cited in the first case study, which could be found in paragraphs 6-12 of the room document, but would refer Members to paragraph 18 of the room document concerning the fourth case study. Here, the plaintiff from Economy X sought damages for infringement of the GI "Ubique" in a court of law in Economy Y. The respondent in that case did not dispute the ownership of the GI, but chose to bring evidence to rebut the presumption that the term fell within the definition of Article 22.1 of the TRIPS Agreement. He alleged that none of the reputation or quality or characteristics of Ubique did in fact essentially arise from its place of manufacture. He adduced evidence to show that for over a hundred years the wine had been manufactured not only in the "Ubique" region, but also in other regions of Economy X and that the reputation, quality or characteristics of "Ubique" did not essentially derive from its place of manufacture. The court could decide that this evidence was sufficient to rebut the presumption that "Ubique" was a GI as defined by TRIPS and the plaintiff's case could fail accordingly. She said that this described a scenario under the Hong Kong, China proposal, where a contentious dispute would be resolved at the domestic level. Her delegation believed that in this case the principle of territoriality of Members would be respected and the balance between the parties would not be changed.
42. She said that the second and third case studies were more straightforward. The second case study dealt with a situation where a contentious GI was resolved at the domestic level before any notification or registration at the international level was effected, and the third case study concerned a non-protectable GI that was screened out by a participating Member at the domestic level.
43. In devising these four cases studies, her delegation hoped to illustrate the implementation and functioning of the Hong Kong, China proposal. As explained in paragraph 4 of the room document, they illustrated that questions of conformity with the GI definition and competing claims for a GI would continue to be dealt with under Members' domestic legal systems. The registration of a term on the register would not in itself be conclusive because the presumption could be challenged in national courts and by the authorities, and the exceptions under Articles 22-24 would continue to be applicable and decided in accordance with Members' domestic regimes, and having regard to the local circumstances. The respective parties' substantive rights under the domestic proceedings would not be changed and the principle of territoriality would be respected. It was her delegation's view that, under the system proposed by Hong Kong, China, the legal effects of a registration were limited in scope and there were no legal effects in non-participating Members.
44. She hoped that these case studies would provide some practical illustrations for Members to see the proposal in a more concrete manner, and that Hong Kong, China could continue to facilitate the negotiation on the GI register in this manner.
