Minutes - TRIPS Council Special Session - View details of the intervention/statement

Ambassador D. Mwape (Zambia)
1 NEGOTIATION ON THE ESTABLISHMENT OF A MULTILATERAL SYSTEM OF NOTIFICATION AND REGISTRATION OF GEOGRAPHICAL INDICATIONS FOR WINES AND SPIRITS
1.7. The representative of Canada, speaking on behalf of the Joint Proposal Group, said that a revised version of the joint proposal was available in the room and would be submitted to the Secretariat for translation and circulation at the end of the meeting. The new version of the joint proposal, TN/IP/W/10/Rev.3, had been reformatted to be consistent with the overall structure found in the draft composite text and it included the new textual proposals on special and differential treatment provisions that the joint proposal co-sponsors had recently provided in the informal drafting group process. He said that, as pointed out in the cover note and towards the end of the first paragraph of the document, the Joint Proposal Group remained very much committed to the Chair's process and to the overall shared objective of formulating a single text without square brackets, but believed it would be helpful to provide the Membership with a revised joint proposal in order to illustrate more clearly what were the two different visions on the table: one which stayed fully within the mandate – namely the joint proposal, and another which was not compliant with the mandate. 1.8. In introducing the new text of special and differential treatment in Section E of the document, he said that the Joint Proposal Group had always viewed their proposal to be the most development-friendly one on the table, in large part because – consistently with the mandate – Members could choose whether or not to participate in the system. That said, the group had also listened intently to the perspectives of others as Members had engaged more concretely in the idea of special and differential treatment. It had clearly emerged that the decision whether or not to participate in the system was a policy decision, and that developing countries, and particularly LDCs, should be able to make that policy decision without being constrained by capacity issues. For that reason the group had come up with specific measures that would help to ensure that developing countries, including LDCs, interested in participating or in consulting the registry would have special and differential treatment (S&D) provisions to draw from. 1.9. The joint proposal text had been divided into two sections - one dealing with transitional time periods, and another with technical assistance. The language was familiar to Members as it was largely drawn from Articles 66 and 67 of the TRIPS Agreement. With respect to the transitional time periods, the new proposal was consistent with the mandate in that it was based on voluntary participation. Another proposal, from the LDC Group, the African Group, India, Brazil, China and others, also proposed transition periods of 10 and 20 years respectively, but in that proposal the clock started immediately upon operationalization of the system. The Joint Proposal Group, in contrast, was of the view that developing countries, and particularly LDCs, consistent with the voluntary nature of participation, should have additional flexibility to decide for themselves when they wanted to have that clock start running. The designation of the number of years for the transition period had deliberately been left as "x" and "y", because the group would appreciate the opportunity to hear from developing countries, particularly LDCs, as to what they believed a transitional time period should look like. While the Joint Proposal Group was made up of developed and developing countries, there were at present no LDC Members part of that group, and it would therefore be very interesting to hear those delegations' perspective on how "x" and "y" should be defined. 1.10. The portion dealing with technical assistance was also very straightforward. It was based on TRIPS language and it was worth pointing out that technical assistance would be available to developing and particularly least-developed country Members seeking assistance with respect to participating in or even just consulting the Register itself. 1.11. Another representative of Canada said that her delegation welcomed the circulation of the draft composite text for a GI register for wines and spirits. Although getting to this point in time had been a challenge, she was pleased that Members had been able to follow through on the Chair's step-by-step work plan on the six elements plus a preamble text. As a co-sponsor of the joint proposal, Canada was particularly pleased to have contributed to the text proposals on S&D. For the first time in these negotiations, Members had been able to assess the GI register for wines and spirits in light of tangible provisions related to S&D. Overall, the draft consolidated text was a document Canada could work with. She was hopeful that it would be possible in the near term to achieve the ultimate goal of establishing a multilateral system for the notification and registration of GIs for wines and spirits. 1.12. However, she said, no obstacle to achieving this objective was bigger and more problematic than the insistence of a few Members to ignore the mandate captured in Article 23.4 of the TRIPS Agreement, which had been agreed to again by Ministers in paragraph 18 of the Doha Declaration, and reinforced by Ministers for a third time in paragraph 29 of the Hong Kong Declaration. Members had been specifically charged with the responsibility of establishing a multilateral system where participation was voluntary and the scope of product coverage was expressly limited to wines and spirits. There were two visions on the table: one that was completely within the mandate, the joint proposal, and another that was not compliant with the mandate, the EU proposal. While populating the consolidated draft text was a notable achievement, it would ultimately be of little consequence if Members could not take the next step of converging on the text. Canada was ready and willing to help in this effort, but could only do so if there were clear and identifiable assurances that the mandate for these negotiations was fully respected by all Parties. The issue of mandate was often characterized by the differences of view pertaining to scope and participation. However, Canada was also concerned with the EU's interpretation of the terms "facilitate the protection" contained in Article 23.4 which it had transformed in their proposal into a "TRIPS plus" legal effect. Two specific concerns for Canada in this regard were the concepts of prima facie evidence and genericness. 1.13. The EU proposal sought to create a system in which the placing a term on the register would constitute prima facie evidence that the term met the TRIPS definition of a GI in all markets. Given its difficult experience in the bilateral context, Canada was not ready to accept as prima facie evidence that a term constituted a GI in its country of origin, let alone in any other markets. She recalled that a few years ago the EU had attempted to register in Canada many terms that did not meet the criteria of a GI in their own country of origin. In fact, only one quarter of the thousands of terms that had been presented to her delegation as GIs had actually qualified as GIs in their domestic territories. This had been problematic then, but what was even more problematic today was that the EU now went one step further and asked Members to blindly accept that the registered terms qualify as a GI not only in its domestic territory but also in the territory of all other Members. This would interfere with the sovereign authority of a Member to implement its own application process, as it would constrain domestic verification procedures. This was in direct contradiction of the fundamental TRIPS principle of territoriality. Canada was of the view that every Member must retain its ability to screen, verify and oppose terms that it deemed should not receive GI protection. 1.14. The EU proposal also modified the applicability of Article 24.6, an exception for generic terms, by reversing the burden of proof. This reversal would shift the burden to Canadian administrative bodies and stakeholders, requiring them to prove that the term was generic, in order to prevent GI registration. This would alter the balance in the TRIPS Agreement, giving GI holders rights in all markets, without providing other legitimate users the certainty of legal process in rebutting the registration by the GI right holders. Canada would like to know why the burden of proof would be shifted to third parties using generic terms that were in the public domain, as opposed to requiring the right holders to prove that they should own a monopolistic right. This was contrary to the ideology of intellectual property rights. Canada could not accept a registry that would affect the rights of its citizens and stakeholders to use certain terms that it deems generic. 1.15. In conclusion, she said Canada remained committed to making progress in these negotiations, but a number of obstacles had to be overcome in order to achieve this objective. Canada was also highly committed to a transparent negotiating process in which Members were able to discuss their specific concerns openly. To this effect, she said that her delegation was available to engage in discussions with any Member who might have questions or comments on the joint proposal.
The Special Session took note of the statements made.
TN/IP/M/28