32. The representative of the European Union said that, as he had recently taken over responsibility for intellectual property and procurement in DG Trade of the Commission, one of the advantages of being new to the negotiations on the establishment of a multilateral system for notification and registration of geographical indications for wines and spirits was being in a position to take a fresh look at the issues and the discussions that had taken place so far. His intervention would address three parts. First, he would like to place the negotiations in the overall negotiating context. Second, he would look at what he saw as emerging areas of convergence and, third, he would try to link some of the answers to the Chairs questions back to the proposal on the table, in particular as his delegation had responded to these questions in detail in June.
33. First, with respect to the overall negotiating process, the Director-General, in his report to the TNC on 19 October stated in view of the G-20 meeting in Seoul that they were looking "to Leaders to send a clear political signal that [we] are ready to enter into the end-game of the Doha negotiations". Mr Lamy further said that the aim of the Geneva cocktail approach was "to reach a level of ambition and balance that [we] can all subscribe to. This of course requires that all areas are included". The representative of the European Union believed all delegations could subscribe to that. If they wanted the so called Geneva cocktail to be good, all ingredients had to be present. There was no way that an important area and an important ingredient for the cocktail, such as TRIPS, could be missing. The cocktail would simply not taste the same and would be unacceptable for most of them.
34. With regard to how other negotiating areas had been progressing, his delegation believed that the TRIPS Special Session would not be ready, should the signal come to enter the end-game scenario. It was therefore important to continue to make concrete progress towards reaching a common understanding, which required an effort from all Members. This had been the European Union's approach from the outset and still remained so. His delegation had come a long way from its original request to the positions that were now reflected in TN/C/W/52, tabled in 2008 by two-thirds of the Members. He recalled that an important feature of that document was an attempt to include elements of interest to a wide group of Members, including developed and developing countries. The fact that the document attracted the support of 108 Members, both developing and developed, was clear evidence that this proposal was the most serious attempt to find a possible landing zone in these negotiations. As was well known, this required progress on all three TRIPS issues. He said he would also like to note that the countries supporting TN/C/W/52 had all moved from their initial positions to find common ground. If there were to be any progress at all, the time had come for others to show movement as well.
35. As regards the GI Register, he said that there were three papers on the table: TN/IP/W/8 from Hong Kong, China, TN/IP/W/10/Rev.2, sponsored by less than 20 Members, and TN/C/W/52, supported by 108 countries. The TN/C/W/52 proposal for draft modalities had been presented in July 2008 in great detail since it had been tabled both orally during TRIPS Council Special Sessions and in writing. A large number of detailed questions by Members had been answered, for example, in a communication dated 23 February 2009, providing a written version of the elements of the EC delegation's oral interventions at the TRIPS Special Session of 4 and 5 December 2008. Further explanations had been provided in subsequent meetings. In sum, a great deal of information had been exchanged and his delegation believed it had built a better understanding for all Members on the technical aspects of the TN/C/W/52 proposal.
36. His delegation fully supported the Chair's approach to pursue technical work. It had therefore complemented the information previously provided by detailed answers to the sub questions on legal effects and consequences of the Register at the last meeting. His delegation found it difficult to imagine that there were still many questions remaining open as to what TN/C/W/52 contained. However, it stood ready to respond again to any questions. He recalled that some Members had also promised to provided further information in future meetings.
37. He would like to highlight the following elements in responses which he believed represented interesting points of convergence between Members. First, in practice if not also in law, trademark offices, when taking decisions regarding the protection of geographical indications and trademarks, did consult various sources of information and did take such information into account when forming their decisions. It was his understanding that, for example, in Korea existing databases and Internet articles of international literature would be fully taken into account. In Japan, the Lisbon Agreement database and relevant information related to GI Registers in foreign countries were consulted. In the United States, the US Patent and Trademark Office used relevant information found in the publicly available trademark database, online sources, other databases, newspapers, magazine articles, Internet websites, dictionaries, gazettes and similar sources were used.
38. Second, it was also part of the domestic legal orders to respect international treaties to which Members were parties. As stated by the delegation of Chile at the last meeting, even when there was no obligation to consult specific sources of information, all binding standards including international treaties signed by Chile which contained provisions on geographical indications were taken into consideration in the registration process.
39. Third, he believed Members could all agree that some specific weight was attached to such information. It was also reasonable that a certain common understanding, mutually agreed at the WTO level, would provide some guarantees to ensure a level international playing field and that was what international negotiations were all about.
40. Fourth, in light of the information provided by those Members who took the floor at the last meeting, it had not been contested that the burden of proving genericness during examination or challenge of a protected term was on the one claiming that the term was generic. Hence, his delegation was of the view that if the Special Session aimed to identify a common understanding about how information on the Register would be taken into account, this was the way Members needed to structure the discussions. This was entirely consistent with the Chairman's approach and the questions which the Chair had circulated as to how proposals would be absorbed by the Members' systems.
41. To follow up on the objective of making progress, his delegation suggested looking at how Members would implement the proposals on the table, focusing for the time being on TN/IP/W/10/Rev.2 and TN/C/W/52. Members should be able to provide explanations not only regarding implementation of their own proposals, but also of other proposals on the table and he said his delegation would take this approach at this meeting. As it was important to identify divergences and possible convergences it was fundamental that the exercise went beyond mere explanations but was really aimed at reaching a common understanding of the implications of the Register. He would therefore, without prejudice to the actual implementation in the future, present the European Union's view on how proposals tabled by other Members as well as its own proposal would be implemented within the European Union. Both aspects were important and his delegation had endeavoured to do their homework in order to facilitate the work of others.
42. Starting with the joint proposal of TN/IP/W/10/Rev.2 and how it would be implemented in the European Union, he recalled that the joint proposal was rather succinct and had not been modified in substance since it was tabled in 2002. Subsequent revisions had been made to add co-sponsors but no substantive modifications had taken place. Under the joint proposal each participating Member committed to ensure that its procedures included provisions to consult the database in accordance with domestic law. As regarded non participating Members, paragraph 6 provided that consultation was encouraged but not compulsory. Co-sponsors of the joint proposal had confirmed orally that participating Members would take the Register information into account and in accordance with their domestic laws. He said, it would be useful if the joint proposal could be updated to provide further details on how its proponents would take the Register into account and perhaps also what weight they would attach to the information.
43. He said that, as already explained at the previous meeting, geographical indications protected wines and spirits at EU level. GI applications for wines and spirits were scrutinized by Commission services. They underwent an objection procedure and were registered if the conditions were met. If the European Union were to participate in the database envisaged by the joint proposal, the European Union would certainly have to change the regulation governing the registration of geographical indications. In accordance with the new provisions, when receiving a GI application from a group of producers from, using a previous example, "Ruritania", the Commission would consult the database. If Ruritania was not a participant in the Register then no information would be found. That meant that for a number of groups of producers the Register would be of no help because the public authorities, for whatever reason, had not used the opportunity to participate in the Register.
44. If, on the other hand, Ruritania did participate in the Register, the Commission services would find information about the notifying Member, the name of the geographical indication, the territory in which the wine or spirit originated and whether the name was a wine or spirit. How would they take that information into account? All the information in the Register would correspond to the basic elements which already had to be submitted with a GI application in the European Union. His delegation came to the conclusion that in the European Union the joint proposal Register would, in practice, amount to a duplication of the information already provided by the applicants and therefore would not add any value for the European Union. In that context, his delegation failed to see how the joint proposal Register would meet the mandate of facilitating GI protection.
45. As also explained at the previous meeting, the European Union had established a Community trademark system in which trademarks could be registered directly at EU level as a single title covering the whole EU territory. Such trademark applications were examined by an EU office based in Spain. If the European Union were to participate in the joint proposal Register, there would be a need to amend the EU trademark regulation, or at least the trademark examiners guidelines to provide for the consultation of the Register. When receiving an application for a trademark or a collective or a certification mark, the trademark office would consult the Register and find information that it would treat according to its respective legislation. That was why the European Union, together with the other co-sponsors of TN/C/W/52, encouraged the adoption of common guidelines as to how the Register information would be taken into account. TN/C/W/52 provided orientations on that matter.
46. Turning to the issue of how TN/C/W/52 would be implemented in the European Union, he recalled that his delegation had already explained the TN/C/W/52 proposal in detail, both orally and in writing. It was, however, ready to develop additional elements in order to bring the technical discussions forward. As already underlined, the merit of TN/C/W/52 was to clearly spell out what the consequences of the Register would be, namely that (i) a name on the Register would be considered prima facie evidence that, in that Member, the notified GI met the definition of "GI" laid down in TRIPS Article 22.1, and (ii) domestic authorities would consider assertions on the genericness exception laid down in TRIPS Article 24 only if these were substantiated.
47. As regards the registration of geographical indications in the European Union, the consultation and taking into account of the Register would be provided for in the EU GI Regulations. As a consequence, when examining a GI application, the Commission services would consult the Register. As the TN/C/W/52 Register applied to all WTO Members, all would have the opportunity to notify their geographical indications for wines and spirits to the Register.
48. When examining a GI application, the Commission services would consider that, prima facie, a geographical indication on the Register met the GI definition. They might, ex officio or at the request of a party, request additional information if doubt arose. Likewise, as was already the case in EU legislation, they might, ex officio or at the request of a party, consider that a third country GI applied for was identical with a generic term in the European Union and would substantiate its findings. On the basis of all those elements, considering also other requirements of the GI legislation, for instance in relation with prior trademarks, the Commission services would then decide whether or not to protect the geographical indication.
49. Finally, as regards the impact on trademarks, again, after the appropriate legislation or trademark examiners guidelines had been modified, the trademark office would consult the Register. The Register would provide the examiners with clear indications as to the nature of the name to be examined, and that would be treated according to EU or Member State domestic law, as appropriate.
50. He recalled that the European Union had wanted to engage in an analysis of the implications of each proposal's implementation – not only the proposal it was co-sponsoring, but also of the proposals supported by other Members. He was confident that the proponents of proposals other than TN/C/W/52 would also duly participate in that important work.
