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

Ambassador Eui-yong Chung (Korea, Republic of)
C.ii.i Procedures
22. The representative of Australia hoped that every delegation interested in the subject was paying close attention to what seemed to be a very procedural discussion about notification and registration and was clearly understanding the significance of the EC's statement, which, on the face of it seemed very innocuous. The problem about the notification system under the EC proposal was that WTO Members would all be faced with some thousands of notifications from one Member only and that they would all be obliged during the 18-month time-limit to go through all of these GIs in languages other than theirs if they wanted to challenge the GIs. As was the case for other co-sponsors of document TN/IP/W/5, Australia also believed that all the procedural aspects of the envisaged system should be simple, transparent and inexpensive. Undue procedural burdens would deter Members from participating and would not contribute to the goal of facilitating protection. As shown in the synoptic table of the Secretariat's note (TN/IP/W/4), the number of countries participating in certain registration systems was very low. 23. With regard to notification, the countries co-sponsoring document TN/IP/W/5 would envisage a system where participating Members would make a simple notification to an agreed contact point in the Secretariat. The system would comprise an initial list of GIs for wines and spirits protected domestically in a Member, with subsequent notifications when a new domestic GI for a wine or a spirit became protected in that Member, and previously notified GIs which ceased to be protected domestically. If a Member decided to cease participating in the system, then all of its notifications would be withdrawn. It would also be necessary for the method of notification to be streamlined and for the information required to be clear and easy to provide. 24. In contrast to notifications, registration would be the responsibility of the administrator of the system, who would place the notifications into a specific searchable database. Registration would also entail notification of the notified GIs to Members. Registration would not trigger any legal effect in any other Member, either to protect a GI or to commence consideration of whether a GI was protectable domestically. He recalled that the TRIPS Agreement only required Members to provide the "legal means for interested parties" to obtain protection. The EC's proposal would require Members to establish a system to examine all GIs – thousands of them– which had been notified to the system. In Australia's view, the multilateral system should not force such a regime upon Members who had decided not to implement such a regime domestically. Furthermore, the right of national decision-makers to determine what would be protected in their jurisdiction was fundamental. 25. With regard to opposition, he said that, since the proposal co-sponsored by Australia did not trigger legal effects in other participating Members, there was no need for a costly or burdensome dispute resolution mechanism to be established. Decisions to grant or deny protection for individual GIs would occur at the national level and, in line with the TRIPS Agreement, would be triggered by an interested party seeking protection in that jurisdiction. With regard to a specific international dispute resolution mechanism envisaged by some countries, he said that a number of its aspects were unclear but, more importantly, of fundamental concern to Australia. The exceptions provided for in Article 24 were clearly to be applied on a jurisdiction-by-jurisdiction basis. The proposal put forward by Hungary and supported by others for dispute resolution could involve arbitrators making an adjudication on whether a term fell within one of those exceptions in Article 24. As far as Australia was concerned, that was a determination that could only be made by domestic courts or the administrative body applying domestic law. How could a decision-maker participating in such an international mechanism decide whether a particular term was customary in common language or a common name for certain goods in a "domestic jurisdiction"? Australia had fundamental concerns with the proposals put forward because, contrary to the views of their authors, that would change the level of obligation, change the legal effect and enhance the level of protection, which was not called for in the mandate of the Special Session.