90. The representative of Australia agreed with Switzerland that the issue of extension was not a North/South issue. Indeed, her delegation was of the view, that all Members had a shared interest in examining the deeper policy issues behind the calls for extension of the additional protection of Article 23 to products other than wines and spirits; and a shared interest in coming to a collective understanding about how it might be possible to work towards better geographical indication protection rather than necessarily increased protection. Another comment by Switzerland had been that consumer deception was not an appropriate concept in the context of intellectual property. Her delegation found this a rather curious statement and she would just like to mention that the common law concept of "passing off" had long been used as a means of protecting trademarks in common law jurisdictions. As regards India's question as to what was intrinsic to wines and spirits that justified them having an additional level of protection, it was her understanding that the distinction in the TRIPS Agreement was the result of a deal made between certain Members at the end of the Uruguay Round, done in the political context that the conclusion of a broad round of multilateral trade negotiations represented. For Australia, this had been quite a concession at that time. As regards the paragraph from her delegation's paper contained in document IP/C/W/211 that the European Communities had quoted, she wished to emphasize the terms "effective protection" in the second sentence of that paragraph and "appropriate balance" in the third sentence. It was precisely because her delegation recognized that this was a significant issue for many Members that her delegation was contributing actively to this discussion, even though Australia was not a demandeur. Australia believed that the seriousness of the issue merited a serious discussion of the policy issues involved.
91. Continuing, she said that the Australian paper, circulated at the last TRIPS Council meeting, sought to give the debate about geographical indications the greater depth and inclusiveness that it clearly needed. Her delegation was encouraged to see that it had already been cited in other fora in support of policy positions that differed from its own - which was evidence at least that Australia had succeeded in being more inclusive, even if it had not yet succeeded in convincing others of the merits of its position. More generally, she would suggest that the characterization of this issue as one that neatly divided the TRIPS Council into two incompatible camps was very likely to be misleading. It was inherently improbable that two clusters of delegations, within a Membership of some 140, had two monolithic and sharply distinct sets of interests. Advancing work on a collective understanding on this issue would require to go more deeply into the issues than had been possible in the debate so far. What was creating a sense of division were widely differing working assumptions about the prospective benefits that would flow from changing TRIPS language in this area. There was an assumption on the part of some delegations that rewriting Article 23.1 to extend it to further industry sectors would bring direct economic benefits - and presumably it was assumed also that these benefits would significantly outweigh any losses. On the basis both of Australia's practical experience, and of economic and commercial developments in many WTO Members, it was its objective judgement that this was unlikely; nor an analysis that reflected a particular Australian perspective. What was intended by the proposed rewriting of Article 23.1? Was it assumed that extending its reach to further product areas would in some way guarantee exclusive rights to control the use of a term once it had been identified and claimed as a geographical indication? To take the example in Australia's paper, if Australia were to assert rights under this provision to "Orange" as a geographical indication in relation to wine - would that override any other use of this word - either to describe the content, aroma, producer's surname, or colour of another product, or bona fide trademark use, or use of a similar sounding word in a language other than English? Would it deny others the right to use "Orange" as a generic term? She would hope not. That would be an obviously unbalanced use of the intellectual property system - to block honest traders from using a descriptive term, in good faith and in a manner already well established in the market, when there was no evidence that any consumer had been deceived or misled as to the actual origin of the product. If "Orange" were to be used in a way that demonstrably caused deception or confusion, or in a way that amounted to unfair competition (in terms of the Paris Convention), then her delegation would expect that some form of legal remedy should be available. But it would be improper to use this mechanism to assert exclusive rights over generic descriptive terms, and to interfere with legitimate trade. It might be different with a term such as "Coonawarra", which was unambiguously an Australian geographical indication with an exclusive reference - if another producer used that term in isolation to characterize its product then it might indeed mislead consumers, and legal remedies should be available in that case. However, if "Coonawarra" went the way of such terms as kiwifruit and chinaware, and became generally descriptive of a type or style of product, then it would not be reasonable to interfere with legitimate trade in those goods.
92. Commenting on the reference in the joint paper introduced by Switzerland to the form of protection in Article 23.1 as "absolute" protection, she said that any sort of "absolute" or unqualified exclusive right should be approached by policymakers with real caution - especially if terms with potentially multiple signification and commercial use were to be claimed to have one single acceptable application. Expectations that the honest use of certain terms - where there was no direct or indirect misrepresentation and no misleading conduct - could be circumscribed or banned, were unlikely to be sustainable. This could lead to a genuine imbalance, conflicting with the very objectives of the TRIPS Agreement, which required a balance of rights and obligations. It was interesting that this debate should emerge at a time when many countries were looking to diversify their traditional economic and export bases, and were looking to the creation of higher-value niche products rather than relying on the production of raw commodities. In many cases, this called for the more effective identification and promotion of distinctive regional identities - a point discussed in her delegation's issues paper. For Australia's neighbour Papua New Guinea, for instance, this entailed gaining greater recognition for its distinctive Highland coffees such as Sigri and Arona. At the same time, many developing countries were successfully moving into new areas of production, such as dairy products, horticulture, processed foods and beverages such as beer, which were directly targeted by proposals to restrict the use of descriptive terms. "Pilsener" beer, which was one of the terms under consideration, was produced in many countries. Dairy products such as feta and parmesan cheese were also widely produced internationally, and were important growth industries in developing countries with considerable export potential. To remove legitimate descriptive terms would be a constraint on trade, just as it would be to deny coffee growers the right to refer to arabica varieties on the basis that this term described the origin of the variety on the Arabian peninsula. This raised the question of whether attempts to rewrite TRIPS provisions threatened to cause problems rather than resolve them. For instance, in Australia, consumers benefited from a wide choice of dairy products. A popular product was feta cheese, which was variously marketed as Greek feta, Bulgarian feta and Australian feta - possibly others as well - depending on the country of origin. Should these terms be used in commerce in a misleading way, for instance, to suggest that there were already legal remedies available under trade practices legislation. A recent consent order of the Australian Federal Court under this legislation concerned labeling of Basmati rice falsely indicating to the consumer that it was of Indian origin. As the government consumer watchdog had observed in relation to this outcome "some consumers believe Indian basmati rice to be superior to that grown in other countries and are prepared to seek it out and pay a premium [...] many seek Indian-grown basmati rice over similar strains grown elsewhere". An effective enforcement mechanism was therefore available through normal consumer protection provisions. However, as the Secretariat summary paper on Article 24.2 showed, some jurisdictions would not normally recognize country names as geographical indications, which raised questions about whether some important geographical terms would be protected. For instance, according to this view, Article 23.1 would not permit Australia to restrain the use of "Australian-style wine", a description that was increasingly common in some markets. This raised interesting issues about the varieties of feta cheese that she had described earlier - would "Australia" or "Bulgaria" be accepted for protection as a geographical indication relating to feta cheese? Yet at the same time, there was a debate about whether the term "feta" should itself be claimed as a geographical indication - presumably, if that were so, under an expanded Article 23.1, it might become forbidden for many current producers of feta to describe cheese even as feta-style. It was because of the risk of unintended consequences, and because of the need for caution when absolute or unqualified rights were being asserted in a manner that would restrain economic development and impede legitimate trade, that her delegation had stressed the urgent need for an objective review of the actual nature and content of current national laws governing geographical indications. In her delegation's view, as a first step, the wide range of approaches that Members had taken in this area should be respected, as Members applied agreed TRIPS standards in a way that conformed with their legal tradition and economic profile. Before claiming that there were great deficiencies in the way geographical indications were protected under the national law of other Members, and that this could only be remedied through imposing absolute terms through revised treaty language, the wealth of information that had been provided on national geographical indication systems, at the direct request of other Members, should be looked at and considered with a view to the balancing of various legitimate interests as her delegation had set out in its discussion paper.
93. She would also like to clarify her delegation's position on the nature of the mandate on the TRIPS Council. Above all, the structure and logic of the TRIPS Agreement stressed that review of implementation - an objective, collective consideration of actual implementation of TRIPS provisions - should precede any endeavour to amend or adjust TRIPS standards. The risk that renegotiations could be based on misconceptions about how TRIPS standards had been applied was a sound practical justification for this approach. The analysis in document IP/C/W/204/Rev.1 suggested that the TRIPS Agreement had not one but two separate mandates for the TRIPS Council to undertake negotiations on the extension of Article 23.1 protection to new product areas. It seemed improbable that negotiators would have required the TRIPS Council to undertake two parallel negotiations, under separate mandates, on the same topic. The paper also suggested that the current TRIPS text was unbalanced and had "imbalances" which were "not consistent with the spirit and basic objectives of the TRIPS Agreement" - in other words, that the negotiators had concluded a text which contradicted the objectives of the TRIPS Agreement. In fact, the balance was reflected in the fact that Article 23.1 was the consequence of the demands of one negotiating party, which had been balanced through trade-offs on other issues, as negotiations necessarily had dictated. Australia had not proposed the approach taken in Article 23.1 but had accepted it as part of the package. It would not maintain the existing balance to create absolute rights in other areas as well. What then were the mandates? Article 24.1 unquestionably concerned "individual geographical indications" - it did not concern entire product sectors or entire industries. It related to specific negotiations on the legal status of individual terms. Further, these were terms which were already protected under Article 23. Why was there no mention of the TRIPS Council in Article 24.1, unlike every other provision requiring action on the part of this body? Quite possibly, it was because it was recognized that it was unworkable and inappropriate for negotiations to be undertaken in this body over the status of individual intellectual property rights with effect in all WTO Members. In this body, it was not the universal validity of a claimed single trademark, or a claimed single patent, that was negotiated, but agreed rules under which individual Members exercised their sovereign right to accept or refuse a claimed intellectual property right. It was unlikely that a single word, which might be a geographical indication in one country (take the example of "Orange") could be successfully determined to have exactly the same primary signification to consumers in all other Members. Nonetheless, there were prospects for reaching a bilateral or multilateral agreement in other ways - for instance, one country might agree to accept Australia's claim that "Orange" was a geographical indication for wine, even though "Orange" had been used by some traders as a descriptive term, or had already been registered or used as a trademark. This would involve waiving the entitlement under Article 24 (the "provisions of paragraphs 4 to 8 below" referred to in this Article) to apply balancing safeguards against absolute geographical indication rights. Page 134 of Gervais's authoritative text on the TRIPS Agreement clearly confirmed this interpretation. This approach to Article 24.1 was hardly more attractive from a policy perspective, in that it entailed negotiations consciously to remove balancing safeguards. Nonetheless, Australia had engaged in such negotiations in a bilateral context. Her delegation was not pressing for one interpretation or another of Article 24.1 out of self interest or for a distinct motive - it was because, in the end, all collective interests were served by respectful attention to the agreed framework of rules Members were working with. Under Article 24.2, there unquestionably was an obligation to consider what the practical effect of existing rules was - whatever Members chose to do subsequently. Her delegation had continued to stress the need to do this, and to respect the fact that Members had provided detailed answers to the detailed questions of other Members, and not change the rules before their actual effect had been considered. The questions raised in Australia's issues paper were therefore pressing ones, matters that should be considered before a compelling case could be made for rewriting rules. Ultimately, some form of consensus would be necessary to move this issue forward and the best form of consensus was one based on an informed collective understanding of the issues. The current proposals simply raised the policy concerns, dilemmas and unintended consequences that she had tried to outline in this intervention.
