1.110. The representative of New Zealand said that his delegation aligned itself broadly with the previous statements by Canada, Australia, Argentina, Malaysia, Chile, Japan, Chinese Taipei, Singapore, South Africa, the United States and Cuba. Admittedly, those countries did not count as two-thirds of the Membership but several could represent two-thirds of world trade in wines and spirits, and certainly all constituted more than two-thirds of Members who cared enough about this issue to participate actively in this process.
1.111. There were broadly two options on the table for most of the key elements in the consolidated text. Given the jumble of square brackets, it was sometimes not easy to identify those options. For this reason, the Joint Proposal Group had circulated a third revision of its text, i.e. TN/IP/W/10/Rev.3, to present one option clearly.
1.112. Regarding the EU option and the consolidated text, he recalled that in the past the European Union had requested Members to look at how they would implement its proposal in their national systems. His delegation had already responded to the request at previous meetings. He would reiterate a few observations. The starting point was to consider how registration and protection of GIs were currently provided. There were a number of different avenues in New Zealand, i.e. through the trademark system, the consumer protection legislation, such as the Fair Trading Act, and also through common law, in particular, provisions relating to unfair competition. The key element of all of these systems was that the GI applicant or the person seeking protection of the term bore the burden of proof. This meant that in the TRIPS context the GI applicant had to prove that the GI met, in New Zealand, the definition requirements of TRIPS Article 22.1: the term for which the applicant was seeking protection had to "identify a wine or a spirit as originating in a certain place," and there had to be proof that a certain quality or reputation of the wine or spirit was essentially attributable to that geographical origin. It went without saying that an applicant seeking protection in New Zealand needed to prove that the term had an identifying impact for consumers in New Zealand. In other words, the applicant must prove that these consumers associated the term with the claimed quality or reputation. So, in order to implement the EU proposal, New Zealand would actually have to turn its current system on its head, i.e., to reverse the burden of proof. Rather than the GI applicants bearing the burden of proving that their terms met the TRIPS Article 22.2 definition in New Zealand, that burden would fall on examiners and third parties in New Zealand to prove that the terms did not meet that definition. This would amount to automatic protection: if a term met the Article 22.1 definition in New Zealand, then New Zealand was obliged under TRIPS to protect that term. The EU proposal dictated to New Zealand's decision-makers to determine whether or not that definition was met. His delegation's concern was not an abstract legal one.
1.113. He said that the EU option would also entail substantial burdens and costs because the reversal of the burden of proof also meant a reversal of the burden of costs. As already noted before, the burden would be less on the EU GI owner and more on other WTO Members' IP examiners and third parties. He could see the attraction of such a system for Members that were large exporters of wine and spirit GIs. On that count no Member could compete with the European Union.
1.114. Recalling that the EU had assured delegations earlier in this meeting that there would be less than 10,000 terms concerned, he said his delegation did not take comfort from such assurances, judging from a 380-pages long list of EU GIs for wines only, not to mention GIs for spirits.
1.115. To conclude, his delegation welcomed the composite text as the conclusion of phase1 of the Special Session's work, which was in itself a significant achievement. With regard to phase 2, which would be the refinement of the composite text, his delegation would be willing to be flexible in finding convergences and enabling a refinement of the text. However, there would be no point in embarking on phase 2 if some participants were not prepared to work within the mandate of this negotiating group, particularly on its scope. In that regard his delegation welcomed the Chairman's assurances at the beginning of the meeting. Unfortunately some Members' interventions appeared to disregard the Chairman's instructions and the negotiating mandate. His delegation urged those Members to review their positions to enable the Special Session to move forward.
