1.65. The representative of Switzerland said that, while delegations had managed in record time to lay the foundation of a text based on the different proposals on the table, the task was not over as the negotiating group would have to further engage in the negotiations on the register. Her delegation had hoped this would have already begun on some of the points, at least at the beginning of this year, but this had not been the case. Once again, the group had been confronted with delegations who had simply maintained their positions, well known since 2005, and which were actually a formalization of an older proposal, discussed in detail since 2002, and even before 1999. This "negotiating" mode and repetition of set positions over ten years had not enabled this group to reach consensus nor had it helped to make any meaningful progress. Clearly, it was not in this spirit - repeating a set position without trying to understand the needs of others within the framework of the group's mandate - that Switzerland had begun to negotiate. It was in a spirit of compromise that Switzerland had joined the W/52 proposal in order to find a solution to the register issue. The W/52 proposal contained a number of flexibilities and had gathered large support since 2008. It contained two other elements that were intricately tied to the register, namely the extension of Article 23 protection to GIs for all products, and the declaration of the country providing/the source of genetic resources, and/or associated traditional knowledge in patent applications. There was a negotiating mandate for these two issues in the Doha Declaration.
1.66. With the joint proposal, that had been resubmitted to the Special Session and presented in the drafting consultations at the beginning of the year, Switzerland had once again been confronted with a proposal that envisaged the establishment of a simple database, containing information which WTO Members could, if they so wished, consult, and with which they could do whatever they liked. Her delegation could not see how the repetition of these three elements would enable the Joint Proposal Group to respond to the mandate from the Uruguay Round in TRIPS Article 24.3, namely to create a multilateral – and not a plurilateral – system of notification and registration that would facilitate the protection of GIs. The joint proposal clearly did not fulfil the mandate.
1.67. In order to clear up any misunderstandings, she wished to reiterate the following points that her delegation supported with respect to the GI register, and as part of the W/52 proposal. Switzerland's objective continued to be the establishment of a system for notification and registration that was as simple, practical and non-bureaucratic as possible, while facilitating the protection of GIs pursuant to the Special Session's mandate. As stated in previous meetings, Switzerland proposed to extend this register to GIs for all products. It was with this in mind that her delegation had continued to propose specific elements of the register. She did not see which elements would be specific to GIs for wines and spirits only and could not be applied to GIs for other products should there be an agreement on GI extension. The Special Session's mandate was to establish a multilateral register, which logically meant that all WTO Members, except those benefitting from a transition period, had already the obligation to provide protection to GI, and should therefore be bound by the effects of registration.
1.68. She said that S&D measures would have to be established as indicated in the W/52 proposal, and the views of the W/52 proponents had already been reflected in the composite text. However, only once the different elements of the register had been put together could this group to know in more detail how to adjust the S&D provisions to the beneficiaries' needs.
1.69. She said that in order to respond to the mandate of facilitating the protection of GIs, it was indispensable to go beyond the mere mandatory consultation of a source of information. At the level of register there needed to be a clear insurance that national authorities dealing with the protection of GIs, be they GI or trademark examiners, judges or any other administrative bodies, would have not only an obligation to consult the information on the multilateral register, but also to take due account thereof when taking their decisions by giving that register content the necessary weight in their own domestic procedures. Her delegation wondered how the protection of GIs would be facilitated if there were no obligations for Members to consult the register and no specific value of information consulted in their territory. Only providing for certain consequences from consulting the register would lead to an actual facilitation of the protection of GIs.
1.70. The two elements proposed in the W/52 proposal and reflected in the composite text concretized the objective of facilitating protection. Both elements were in the strict framework of the current TRIPS rights and obligations and respected the current balance. The first element consisted in attaching to registrations the effect of a prima facie evidence regarding the GI definition under TRIPS Article 22.1. This prima facie evidence could be challenged at any time in all WTO Members and would not automatically create protection in any WTO Member, as national procedures would have to be respected in order to obtain specific protection. The second element consisted in considering claims of genericness only if they were substantiated. This element reflected what was already set out in most national procedures for GI or trademark protection where the examining authority or the third party claiming genericness had to explain why the term in question was considered generic.
1.71. She said that these two elements would facilitate the protection of GI right holders without preventing any Member from applying the exceptions under the current TRIPS Article 24 or calling into question the principle of territoriality, as the decision to protect a specific GI would be made at national level in the Member where protection was sought in accordance with its national procedures.
1.72. She hoped that these explanations had helped clarify the proposed elements on the register that her delegation supported as one of three prongs of the W/52 proposal. Her delegation hoped that the Special Session would see some changes in the Joint Proposal Group's positions so that negotiations could begin towards a compromise solution that would facilitate the protection of geographical indications.
