33. The representative of Australia recalled that his delegation had been raising a number of questions on the issue of traditional expressions, which were common or generic expressions, ordinary everyday English adjectives or descriptive terms such as "chateau", "vintage", "ruby" or "tawny". There were similar everyday terms in other languages such as Spanish or Portuguese. His delegation had been asked why this question was relevant to these negotiations and it had made the answer clear. First, these questions stemmed from Australia's concrete experience with bilateral agreements in the area of wines and spirits, particularly its negotiations with the European Communities. That experience indicated that where geographical indications went, traditional expressions invariably followed. The reality was that proponents of an expensive, highly regulatory wines and spirits register had required Australia to include traditional expressions on the wines and spirits registers it had negotiated. As a result, traditional expressions had found their way onto the wines and spirits registers of a number of the New World wine producing Members. Australia wanted to ensure that they did not find their way onto the wines and spirits register the Special Session was negotiating multilaterally. Second, Australia's concern was exacerbated when it read public comments by the European Commissioner for Agriculture last year that some of these ordinary everyday words were so closely linked to geographical indications that they had in fact become geographical indications. Australia assumed that this meant, from the perspective of the proponents of the more burdensome wines and spirits register, that traditional expressions might be eligible for all the benefits that it agreed to give only to geographical indications, including benefits stemming from inclusion on a multilateral register for wines and spirits. Third, and contrary to statements that might suggest otherwise, there had been legislative attempts by a group of Members to protect some traditional expressions as if they were geographical indications. For example, Article 24 of the EC Wine Regulation (No 753/2002) required certain traditional expressions to fulfil a specific set of conditions set out in the Regulation, including that the traditional expression identified "a wine as originating in [a] region or locality within the territory of the Community, where a given quality, reputation or other characteristic of the wine, as expressed by the traditional term concerned, [was] essentially attributable to the geographical origin". Against the background of these practices, his delegation had asked a number of questions to the proponents of GI extension whether they considered traditional expressions intellectual property. For Australia, they were not. His delegation also asked these delegations whether the TRIPS Agreement had any relevance to traditional expressions. For Australia, it was not of any relevance at all. His delegation had also asked whether a traditional expression could be a geographical indication. In other words, could ordinary adjectives in English, French or Spanish become geographical indications? For Australia, they could not, presently and in the future. The responses received to these questions from advocates of the more burdensome wines and spirits register had been carefully catalogued by the Secretariat in paragraph 25 of document TN/IP/W/7. The first response and the first sentence of that paragraph 25 said that "traditional expressions [were] attached to wines bearing a geographical indication and there [was] therefore a distinction between 'traditional expression' and a 'geographical indication'". His delegation had pondered over this and suggested that delegations look carefully at what these responses did not say. There was no mention of what the distinction between a traditional expression and a geographical indication actually was. The answer given fell short of saying that one term constituted intellectual property while the other did not. Secondly, these were terms which could only be used with a wine bearing a specific geographical indication. They could not be used with any other term. They could not be used by themselves. They could gain, de facto, each and every one of the benefits a country might agree to give only to the geographical indication with which it was associated. There was no mention of how to overcome this problem. Nor was there any mention of the fact that traditional expressions were going to be completely irrelevant to any discussion of the multilateral register for wines and spirits geographical indications that the Special Session was negotiating. The second response to his delegation's questions (second sentence of paragraph 25) caused even more concern to his delegation. The response was: "since traditional expressions [were] not protected as geographical indications in their country of origin in accordance with Article 24.9, they would not be eligible for notification under the multilateral system". Given the terms of the EC's latest attempt at a wine labelling regulation, his delegation remained unconvinced by this answer as a clear statement of fact. Article 24.9 of the TRIPS Agreement, which said that "there shall be no obligation under this Agreement to protect geographical indications which are not or cease to be protected in their country of origin, or which have fallen into disuse in that country", was clearly relevant to geographical indications only. Yet, the EC appeared to be saying, when they invoked Article 24.9 of the TRIPS Agreement, in response to Australia's questions about traditional expressions, that: firstly, the TRIPS Agreement was relevant to the issue of traditional expressions; and secondly, that Article 24.9 applied to traditional expressions in the same way that it applied to geographical indications. So, his delegation was left wondering what other Articles of the TRIPS Agreement the proponents of the more burdensome wines and spirits register thought should apply to traditional expressions. His delegation could think of many reasons why traditional expressions should not be and should never be eligible for notification under a wines and spirits register: firstly, traditional expressions bore no recognized relationship to geographical indications of relevance to the negotiations on the wines and spirits register; secondly, they should therefore not benefit either de facto or as a matter of substance from any protection the Special Session would agree to give geographical indications because no participant had agreed to give away these benefits; and thirdly, no Article of the TRIPS Agreement applied to any words considered by one or two Members to be traditional expressions. Previously, his delegation had suggested a way of registering Australia's concerns in relation to these issues by using a footnote. It would, therefore, propose such a footnote, which would clearly clarify any ambiguity about the relationship between traditional expressions and geographical indications and read as follows:
"Members agree that so-called traditional expressions, or any other analogous term, are not intellectual property. Intellectual property rights cannot vest in these terms. It is further agreed that these terms do not and could never meet the definition of a geographical indication or ever be subject to the protection conferred on geographical indications in Section 3 of Part II of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights. Accordingly, Members further agree that no claim will be made during or after the negotiations that a traditional expression meets the definition of a geographical indication or that a traditional expression is subject to the protection conferred under Section 3 of Part II of TRIPS".
