1.122. The representative of Hong Kong, China said that her delegation believed the composite text formed a useful basis for developing the multilateral system of notification and registration of GIs for wines and spirits. The covering note of the composite text reflected that the text was "work in progress" and the comments that Members made in this meeting would no doubt contribute to make the text more comprehensive. In order to bridge the divergent views of Members, Hong Kong, China had tendered a text proposal which reflected the general practice of WTO Members on formality examination and the special practice of evidential legal provisions in Hong Kong. Both the formality examination and the evidentiary legal provision had been operating in Hong Kong, China for over ten years. Its purpose was to obtain long-term efficiency with minimal immediate investment. The overriding consideration was that the proposed system should work. It was in this context that Hong Kong, China had structured and submitted its proposal with the following guiding principles: (i) the purpose of the system was to facilitate the protection of GIs for wines and spirits; (ii) Members shall be free to determine the appropriate method of implementing the provisions of the TRIPS Agreement; (iii) intellectual property rights were of territorial nature; (iv) the system shall not impose additional substantive legal obligations or confer additional legal rights on Members beyond the TRIPS Agreement; and (v) the system shall not impose undue financial and administrative burdens on participating Members, in particular those Members who did not have many GIs to notify.
1.123. She said that, instead of focussing on one or two particular aspects of the composite text, this negotiating group should look at the composite text as a whole to see what the overall effect would be. Under Hong Kong, China's proposal, Members could choose to participate freely under the proposed system, which was entirely voluntary. This had been reflected in Section A.1 of the composite text. As reflected in Section C.1, the proposed multilateral system would involve a formality examination of the notified GIs. The notified GI would be entered on the register by the WTO Secretariat upon submission of some basic information, such as details of the GI, ownership and the basis on which it was claimed to be protected in the country of origin, and upon payment of the requisite fee, as reflected in Section B. The formality examination would only involve checking of the documents submitted by the notifying Member to make sure the minimum formal requirements were met. The register would contain the information of the registered GIs and would be made available to participating Members, e.g. through an internet website.
1.124. The registration, she said, would then be accepted by the domestic courts, tribunals or administrative bodies of the participating Members to prove three issues, namely (i) ownership, (ii) that the indication was within the definition under Article 22.1 of the TRIPS Agreement, and (iii) that the GI was protected in the country of origin. These three issues would be deemed to have been proven unless evidence to the contrary was produced by the other party to rebut it. In other words, the registration would give rise to a rebuttable presumption over these three issues. This was reflected in Section D.1 of the composite text. The aim of the proposal was to assist the owners of the registered GIs to discharge their burden of proof on the three relevant issues in domestic proceedings. This would in turn, her delegation believed, facilitate protection of GIs as mandated under Article 23.4 of the TRIPS Agreement. The balance of Members' rights and obligations under the TRIPS Agreement would not be affected under the proposed system. Questions on conformity of GIs and competing claims for GIs would continue to be dealt with under Member's domestic legal systems, as the registration could be challenged in national courts and other authorities. The exceptions under Articles 22-24 of the TRIPS Agreement would continue to be applicable and decided in accordance with Members' domestic regimes, having regard to the local circumstances. Parties' substantive rights under the domestic proceedings would not change and the territoriality principle would be respected. Under Hong Kong, China's proposed system, the legal effects of the registrations would be limited in scope and there would be no legal effect on non-participating Members, as reflected in Section D.4 of the composite text. She recalled that her delegation had developed four hypothetical case studies in a room document dated 28 October 2009 to illustrate how its proposal would work.
1.125. She said Hong Kong, China had also proposed that a GI registration would have to be renewed every ten years in order to remain on the register, thus ensuring that the register would be up-to-date, that the costs of operating the system - based on user-pay principle - be shared among participating Members on the basis of the number of applications filed by each of them. This was reflected in Sections C.6 and E.2 respectively in the composite text. In response to Singapore's question, she recalled that her delegation had provided a model in Annex B of TN/IP/W/8, later updated on 2 February 2011 in a textual proposal in the small drafting group to explain the user-pays principle. Her delegation hoped that the proposal as well as the room document would help Members to focus on the issues that merited discussion and exploration so that the system would be as comprehensive as possible.
1.126. Her delegation was ready to work with all Members to improve on the draft composite text, including on S&D. It welcomed and had benefited from the comments expressed by Members on its proposal. The draft composite text was work in progress, and Members should continue working towards the target of early conclusion of the negotiation on the GI register for wines and spirits.
