45. The representative of Hungary noted that many points raised under the category of "participation" did not really deal with "participation", but rather related to the issue of "purpose". He added that unfortunately some statements made had a more wide-ranging character. For example, the representative of Australia had repeatedly used the example of the Hungarian origin wine name "Tokay" to demonstrate certain views, such as the supposed link of the negotiations on the registry with the extension of GIs, an issue which was not part of the negotiations under the Special Session. With respect to the discussion on a registry, he recalled that his delegation had always proposed having a registry which was "extendable" to other products. There was however no automatic link; that was a question of further negotiations and certainly very difficult ones. He was particularly concerned about the current backtracking of the debate to the supposed danger of extension to products other than wines and spirits. The Special Session was facing a situation where the opponents did not want to see any meaningful outcome in spite of the clear mandate of Article 23.4 and paragraph 18 of the Doha Declaration. His delegation was also aware about the links between various negotiating issues but believed it was extremely regrettable if this kind of political link was used as an argument for actually blocking results in the Special Session.
46. Turning to the example of "Tokay", used by the delegation of Australia, he said that Hungary was aware of the fact that some EU members still used the name "Tokay" for certain types of wine. However, there was an agreement with the EU under which the use by those countries would be stopped from the year 2007. In the case of the example of "Tokay d'Alsace", the term currently used was "Pinot gris d'Alsace". So, the use of the name "Tokay" had been gradually phased out. His delegation said that the example used by Australia was a good one. Hungary would also be interested in a set deadline for the phasing out of the name "Tokay" by any other countries as well. Regarding the "Tokay" produced in the Slovak Republic, he indicated that there were on-going negotiations between the Slovak Republic and Hungary on this issue. The area of Tokay historically extended to some parts of the Slovak Republic and was mentioned in a law on the registration of wines in the 19th century. That was the basis for the use of this name. He was not aware of any similar historical basis for any region called Tokay in Australia or any other part of the world. He said that this kind of situation need not be resolved at this stage. He recalled that Hungary had proposed that in the event of such disputes parties could go into arbitration. Although arbitration might take some effort and time, the issue would be resolved once and for all and if, according to Australia, "Tokay" was considered as a generic term and the arbitrators agreed with that finding, then Hungary would accept it. However, if that were not the arbitrator's decision, the national procedures would have to respect that decision. Comparing Hungary's proposal for arbitration with WTO dispute settlement, he expressed his surprise that the same countries did not have the same concerns about costs, lengthy arbitration, or lengthy dispute settlement, when it came to the protection of intellectual property in other areas, be it pharmaceuticals or industrial products. In his view, a dispute settlement system specifically aimed at providing the necessary solution to solve problems caused by usurpation of names was required, even if it clearly involved costs. Therefore, his delegation did not think that the question of possible litigation was a valid basis for trying to block the adoption of a registry.
47. With regard to other issues under discussion, the representative of Hungary noted that the delegation of Chile had defined the word "to facilitate" as the contrary of "to complicate". If that were to mean doing nothing, then he wondered what the objective of Article 23.4 and paragraph 18 of the Doha Ministerial Declaration was. With respect to the intervention by the representative of Australia regarding the erga omnes effect of the arbitration system proposed by Hungary, he referred to document IP/C/W/255, paragraphs 3 and 4, and confirmed that the effect of the arbitrator's decision in case of challenges made on the basis of Article 22.1 and Article 24.9 would be of an erga omnes nature. In other words, should the arbitrator find that a notified GI did not fit the definition or was not under protection in the country of origin, it would not be entered into the register. He reiterated that the erga omnes effect was important because it would save time and effort for the participants in the system, since a single successful challenge would prevent the registration of notified names not fitting the definition or not under protection in the country of origin; they would have no effect in any WTO Member. Members should have the opportunity to also challenge the multilateral registration of notified GIs on the basis of the exceptions in Articles 24.4, 24.5 and 24.6 (i.e., prior use, good faith, prior trademark application and generic names). In the event of a successful challenge, the notified GI would be registered without effect on the successful challenger. The reason for not having an erga omnes effect in the case of these challenges would be that the applicability of the exceptions in Article 24 could only be determined on a case-by-case basis.
