73. The representative of New Zealand said that he would come to the second question by a round about route, i.e. by responding to the EU statement made earlier and which he thought covered both Chairman's sub-questions.
74. In relation to the first part of the EU statement he said that it was unhelpful in the process of advancing negotiations to enter into discussions of broader, rhetorical and political issues. It was precisely to avoid that kind of discussion that the Special Session had been making efforts to focus on areas in which it could examine national systems, which in the end would enable more useful dialogue. He thought that was being achieved. He considered the last meeting in June to be good thanks to the Chairman's sub-questions. This process should continue. If issues were brought in that were not within the mandate as the European Union had done, then New Zealand would want to talk about for example agricultural market access subsidies, which clearly would not help the process.
75. The second part of the EU representative's statement was more positive and was a good faith effort to identify some emerging areas of convergence. Whilst he would agree with the first two areas identified, and like the representative of the United States, he was not yet convinced that there was commonality of views regarding the weight to be attached to the information on the Register. As the minutes of the June meeting (TN/IP/M/26) had quite clearly shown, the weight of evidence had to be assessed on a case-by-case basis in New Zealand's system. His delegation would be cautious about predetermining the weight of evidence and hence bias such evidence, particularly if it came from a unilateral decision of another jurisdiction.
76. The fourth possible area of convergence related to genericness. He thought the representative of the European Union had stated that it was not contested that the burden of proving genericness was on the person claiming that the term was generic. This was true to an extent. As the minutes of the June meeting would show, his delegation had explained how the system in New Zealand would operate when a third party objected to an application or sought to have a trademark overturned on the grounds of genericness. In that situation, that third party bore the burden of proof. However, his delegation had also said, as reflected in paragraph 81 on TN/IP/M/26, that "basically" an applicant had to satisfy the examiner that there were no grounds, e.g. genericness, that would prevent registration of a trademark. In New Zealand's system, the applicant would have to prove, through evidence, that a term was non generic. This also seemed to be the case in Switzerland: as indicated in paragraph 108 of TN/IP/M/26, the Swiss representative had said that the proof of genericness or non genericness of a geographical indication had to be provided by the GI applicant. He actually took comfort from that statement, which was suggestive of a good balance in Switzerland at least between geographical indications and generics. Having said that, it was not clear to him that the current burden of proof was actually reflected in the proposal that Switzerland supported as its representative had said in paragraph 109 of the minutes that the obligation to substantiate the genericness of a term should be included in the future Register. He asked the delegation of Switzerland to further clarify its position.
77. Finally, he said that the suggestion made by the delegation of the European Union that Members examine how the two proposals on the table might be implemented was potentially constructive and doubtless resulting from the fact based discussion arising from the Chairman's sub-questions. In that context, he acknowledged that Members had previously engaged in a reasonable process of questions and answers relating to the proposals supported by the European Union, Switzerland and some others. However, he did not consider that such a dialogue based on questions and answers was truly a replacement for a properly elaborated legal proposal. Should his delegation have to examine how that proposal might be implemented, then it would be helpful to have an elaborated version of the TN/C/W/52 proposal, or at least to hear from a wide variety of Members who supported that proposal on how they would implement it. Whilst there had been a few more delegations explaining how they would implement the so-called "majority proposal", he would wish to hear more from other co-sponsors.
