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

Ambassador Eui-yong Chung (Korea, Republic of)
United States of America
C.ii.i Procedures
32. The representative of the United States made some preliminary observations on the Secretariat's note (TN/IP/W/4). First, the note was very useful in helping participants to contrast the notification and registration systems in other agreements with the one contemplated by the drafters of Article 23.4. He invited all the Members, in reviewing the document, to pay attention to the first four pages that summarized the overall theme. Certainly, the drafters of the TRIPS Agreement selected their words very carefully to clearly convey their intent. In paragraph 5 of the Secretariat's paper, it was noted that other agreements were aimed at the acquisition of protection. In Article 23.4, the TRIPS drafters used the word "to facilitate the protection" as contrasted with the notion of acquiring protection. Paragraph 8 of the paper stressed the "application" process and the underlying Agreements or Acts referred to "applications". "Application" suggested a path to acquiring rights and the drafters of Article 23.4 selected the term "notification" and not "application". Thus, they clearly meant something different. Other Articles in the TRIPS Agreement referred to "application" (e.g., Article 15.3) or to "applicant" (e.g., Article 29); it was, therefore, clear that the drafters of Article 23.4 could have used the term application if they had so desired. Except for the Patent Cooperation Treaty, there were few signatories to the Agreements or Acts cited in the synoptic tables. As had been noted by earlier speakers, this fact suggested that the international community had not accepted these types of approaches where the registration process had been an objection procedure and resulted in the granting of substantive rights. For example, only 20 out of the 171 WIPO Members had signed the Lisbon Agreement. The Special Session should not adopt an approach that past history had demonstrated was not acceptable to a large number of countries. 33. Turning to the mechanics of the system, he said that his delegation believed that the procedures for notification should be non-burdensome on those Members choosing to participate in the system. The Joint Proposal (TN/IP/W/5) stated that "WTO Members wishing to participate in the system might submit to the Secretariat a list of domestic geographical indications for wines and spirits recognized as eligible for protection under their national legislation, indicating for each indication the date on which recognition was granted by the notifying Member and the date, if any, on which protection would expire". The US delegation believed that the format in which such notifications were to be made could be decided upon after the multilateral system itself was established. That format, however, should be designed to make the Secretariat's task of compiling the initial and subsequent notifications as simple as possible and to make the resulting database as user friendly as possible. As earlier mentioned by other delegations, the TRIPS Agreement required Members to implement the obligations of the Agreement by using the appropriate method within their own legal system and practice and not in accordance with some supranational system and practice. Article 1.1 also stated that Members "shall not be obliged to implement in their law more extensive protection than is required by this Agreement" . 34. He said that oppositions to any notified geographical indications should take place in accordance with the method that the notifying Member had provided for within its own legal system and practice. It would, of course, be necessary to ensure that the opposition procedure within the notifying Member's legal system and practice was available to the nationals of all other WTO Members in accordance with the requirements of TRIPS Articles 3 and 4. He recalled that his delegation had raised some questions about the extent to which all Members had fulfilled that obligation. Not all oppositions would be actions by governments. The system envisioned in the Joint Proposal would also "facilitate" the protection of geographical indications for wines and spirits by notifying to the public the use of a geographical indication of which they might not be aware, and uses that they believed were misuses so that they would have an opportunity to challenge them as provided for in Article 23.1.