1.43. The representative of Chile said that, as a sponsor of the joint proposal, his delegation had participated constructively in the negotiating group. It had been open to suggestions and opportunities to improve the text, in particular with regard to its use by developing and least developed countries, and the result was reflected in an additional proposal on S&D. His delegation's aim was to have a negotiating text ready by the end of April; in this context, there were two aspects of particular importance for Chile.
1.44. First, with respect to the mandate, he said that for the Chairman and the Joint Proposal Group there was only one possible reading of the Special Session's mandate, namely to negotiate a multilateral system of notification and registration of GIs for wines and spirits which facilitated, and not increased, the protection of such GIs. Chile was willing to work in that framework, but its flexibility to reach agreements and move forward was dramatically reduced if some Members change and broaden the negotiating mandate arbitrarily in order to address their interests in other areas.
1.45. Second, he said that, as the draft composite text might appear complex to Members that had not participated in the negotiating group, the Joint Proposal Group had circulated a third revision of their proposal (TN/IP/W/10/Rev.3), so that all Member were informed in a clear and transparent manner of the benefits of adopting either the simple and voluntary register described therein, or a more costly and complex one as that proposed by the European Union. In this regard, he would like to highlight, in a preliminary manner, some of the effects that certain elements of the EU's proposal could have on Chile's system in practice.
1.46. With regard to participation, he said that mandatory legal effects for all WTO Members proposed by the EU meant that all Members, including those with no GIs, had to take the responsibility for protecting the thousands of GIs belonging to the EU. Even though a major wine producer, Chile only had a limited number of GIs for wines and spirits, around 70 in total. Participation in a registration system was therefore something that required careful consideration and should certainly not be a mandatory obligation.
1.47. With regard to the consequences of registration, he said his delegation welcomed the EU's repeated and constant willingness to try and explain its proposal, although such explanations sometime complicated things. In the negotiating group, the EU had said that its proposal involved not one or two, but three legal elements or consequences for all Members: first, all WTO Members would be obliged to take into account the GIs on the Register when deciding on the protection of a trademark or a GI in their domestic systems. Second, the simple act of the EU notifying a GI into the Register would mean that within the framework of domestic protection procedures, the EU's GIs would enjoy a presumption of validity, thus transferring the burden of proving that the GI did not comply with the TRIPS definition, and the cost of doing so, to domestic applicants.
1.48. Third, additional requirements would have to be met if domestic intellectual property offices wished to apply the exception under Article 24.6 of the TRIPS Agreement regarding the genericness of terms. According to the procedure for registering trademarks and GIs in Chile, the genericness of a term was determined according to criteria applied by the National Industrial Property Institute. However, should the EU's proposal be accepted, the IP office would no longer be able to fully apply its own law to determine the generic character of a term, since it would only be able to determine genericness where a third party intervened and substantiated or proved such genericness, or where the office itself proved that the term in question was generic. These were additional requirements which did not currently exist in the TRIPS Agreement which would restrict the room for action of domestic offices.
1.49. With respect to S&D, he said that the Joint Proposal Group had made additional efforts in this area, and India, Brazil, the African Group and others had also submitted their proposal. He found it striking that the EU was referring critically to the voluntary nature of the joint proposal as a form of S&D when it had not made any proposal of its own in this regard.
1.50. Regarding the costs of the register, he said that, similar to the proposed legal obligations for all Members, the suggestion by the EU that all WTO Members should pay for the administration of this system in itself highlighted the burden of the EU's proposal. Such an arrangement would undoubtedly benefit those Members with a greater number of GIs. The costs of the system as proposed by the EU were substantial, especially considering all the translations that would be needed. In contrast, the administration costs of the proposed database would be minimal.
1.51. He said that, in short, although the EU claimed that the prima facie evidence applied only to the definition and not to the protection of GIs, it was crystal clear from its proposal that this meant automatic protection for EU GIs, the transfer of costs to producers and holders of local trademarks and GIs, and a limitation of the flexibility currently provided for under Article 24.6 of the TRIPS Agreement. In addition, the EU proposed that the cost of this be borne by the entire WTO Membership. His delegation could not agree to such a proposal, but would rather - in line with a Spanish saying - let someone else carry that particular burden.
