103. The representative of Switzerland said she would not repeat the responses that she had given in June on the second question, but would instead refer to paragraphs 108-109 of the minutes in TN/IP/M/26.
104. With regard to comments made by previous speakers, she recalled that under the TN/C/W/52 proposal the proponents had submitted a text with draft modalities and principles because in the course of detailed discussions based on previous proposals they had realized that they were unable to make progress because they could not agree on issues of principle. Should the Special Session come back to discussing details, she failed to see how they could make progress before agreeing to certain general principles for the multilateral system. That was why it would be necessary to continue working on the issues of principle in TN/C/W/52 in order to get more clarity for the Special Session.
105. Turning to the comments made by the representative of New Zealand regarding her intervention at the June meeting, she said that at national level, in carrying out an examination of geographical indications, the competent authorities duly took genericness into consideration before registering the indications. She expressed her satisfaction that the New Zealand delegation had recognized that the Swiss authorities carried out such examination, and that there was a balancing between geographical indications and generics at national level. This was also a recognition that the information that would be provided subsequently as well as the geographical indications that would be sent to the multilateral Register would be based on work carried out at national level, taking account of various elements, notably genericness.
106. With regard to the manner in which consideration would be given to the work done at national level and what Switzerland was seeking to obtain through the negotiation on the establishment of a multilateral Register, she said that it was necessary to make a distinction between the objectives of the two registers. On a national level, when a geographical indication was examined and then registered, the register created protection of the geographical indication at national level. Once granted, the registration was very strong. She noted that, in many jurisdictions, including the Swiss one, the trademark applicant would not be required to prove that the trademark was not descriptive or generic. It was for the examiner to determine during the examination process whether or not the term was generic or descriptive and then the right holder could object to the assessment made by the examiner. In that regard the trademark examiner clearly played an important role.
107. The TN/C/W/52 proposal sought to create a source of information that all of the WTO Members had to take into account whenever they examined a GI or trademark application. As pointed out, registering a geographical indication in the multilateral Register would not create protection in all WTO Members. However, it would create a source of information that each and every Member would have to take into account whenever its authorities considered a trademark application. Thereafter, they would decide at national level whether or not that information would be fully implemented to reject the trademark because it contained a GI application, or based on the evaluation of the situation at national level they would decide not to take that information into account because the term was generic.
108. Switzerland's concerns and the reasons for its support of the TN/C/W/52 proposal and its various elements was to provide a mandatory source of information for all WTO Members to facilitate protection of geographical indications in third countries and to provide information that only the country of origin was in a position to provide on geographical indications that it had already acknowledged at a national level within its territory.
109. The aim pursued and the mandate received were to facilitate protection of geographical indications in third countries. In this regard, she said that in many cases geographical indications were the property of local communities who did not often have the resources to monitor third markets and all the WTO Members as far as trademark registrations were concerned. Hence, a mechanism had to be found, obliging trademark examiners to give careful attention to geographical indications when examining trademarks to prevent trademark registrations of geographical indications for products that were not linked to those GIs. Once a trademark had been registered in good faith, it would prevent, at least in many domestic systems, the GI product of the country of origin from being marketed in a third country on grounds of prior trademarks. In that regard, this was one of the important elements of TN/C/W/5, which definitely needed to be considered in creating a multilateral system that facilitated the protection of geographical indications.
