26. The representative of Japan said that his delegation welcomed the ongoing technical discussion based on the sub questions elaborated by the Chairman which he believed could lead to a mutual satisfactory solution under the mandate. His delegation had made a preliminary comment to the Chair's question 1 at the previous session and, based on that, would like to provide further comments.
27. With regard to geographical indications for wines and spirits, he said that Japan had introduced administrative measures by a notice from the National Tax Agency entitled "A Standard for Indication in Relation to Geographical Indications," which was based on the Law Concerning Liquor Business Association and Measures for Securing Revenue from Liquor Tax. The notice provided that in addition to Japanese geographical indications designated by the Commissioner of the National Tax Agency, any geographical indication protected in a WTO Member was also protected in Japan. When deciding whether or not a claimed geographical indication would be protected in Japan, it was current practice that information on a related geographical indication registered and protected in other Members on the Internet and other devices would be consulted and taken into account. He said that under the TN/C/W/52 proposal, the fact that a geographical indication was listed in the GI Register would be treated as prima facie evidence that the said geographical indication met the definition in Article 22.1 of the TRIPS Agreement. His delegation wished to explain how such a proposal would impact on the current practice, although it was difficult to do so in the absence of a detailed legal text.
28. When deciding whether or not a specific geographical indication protected in other Members would be protected in Japan, Japanese authorities currently examined themselves whether such a geographical indication met the definition in Article 22.1 of the TRIPS Agreement based on relevant information. With respect to certain specific geographical indications Japan had agreed in several Economic Partnership Agreements (EPAs) that these were indeed geographical indications as defined in Article 22.1 of the TRIPS Agreement. With respect to other claimed geographical indications it was necessary for expert officials to scrutinize numerous documents that Japan requested the other party to submit in order to prove that the claimed geographical indication met the said definition. It usually required a lot of successive communications to collect the necessary information between parties and a great deal of time to examine it. In an effort to maintain a balance between the time period for negotiating the EPA and the time needed for examination of the claimed geographical indications, Japan usually requested the other parties to limit the number of claimed geographical indications in the preparatory phase, also taking account of the fact that possible generic names were included in the claimed list. But even such a limited list imposed a considerable burden on them to complete the process.
29. If the TN/C/W/52 proposal were to be implemented, this considerable burden for collecting and examining such information would be imposed on third parties, including from the private sector. Although the TN/C/W/52 proponents had explained that the final decision for protection would not be determined by the GI Register, such a shift of the considerable burden to third parties from the private sector would nevertheless be problematic. Furthermore, the proposal of prima facie evidence was not reasonable in view of the chilling effect caused by the aforementioned considerable burden and considering the balance of cost and benefit between the party seeking to benefit from the exclusive right of a geographical indication and the relevant stakeholders, including the private sector.
30. He said that with respect to trademark protection his delegation had already provided a detailed explanation at the previous session, and he would therefore not repeat that here.
