110. The representative of Australia said that her delegation had been most interested to hear that those proposing to rewrite the binding TRIPS obligations on geographical indications to create new treaty language that all would have to explain to Ministers and legislators had taken exception in various ways to Australia's proposal on 24.2. For example, it had been suggested that it would not be productive to discuss practical examples and even that it would be beyond the mandate of the TRIPS Council to consider the impact of implementation of the TRIPS Agreement. The much lamented failure of the TRIPS Council to reach consensus on the demands by some to extend Article 23.1 level protection to products other than wines and spirits could, possibly, be attributed to the fact that those urging an immediate change of binding international rules seemed unprepared to explore the policy basis and consider the implications of their demands. Yet, those who were proposing a comprehensive informative study that could lay the basis for consensus were admonished for being obstructive. Surely, for those making unilateral demands to impose new TRIPS obligations, there was a responsibility to explore how the existing system worked; explain the actual deficiencies they saw in national legal systems that gave effect to TRIPS rules; explain how their proposed amendments to the TRIPS Agreement would yield sufficiently substantial and widely felt net benefits to be worthy of the treaty amendment process; and indeed explain what the new obligations they were seeking to impose would actually mean in terms of domestic law; i.e. the kind of questions her delegation had posed in its paper. Anything less than this threatened to reduce the process of review to the articulation of political slogans. There had been resistance to explaining negotiating objectives in a concrete way, with reference to specific geographical indications, even though it had to be assumed that delegations had specific terms in mind that they wanted actively to prevent other Members from using. This was not an abstract exercise. If, for example, the Czech Republic notified "Pilsener" as a geographical indication of interest to it, was it seeking to engage Members in negotiations to compel the breweries in many WTO Members to cease marketing pilsener style beer? If so, there was a need for WTO Members to know what impact this would have on their industries. This raised deeper questions, for example: would those Members, including developing countries, seeking to break into new export markets in agricultural products and processed foods benefit from the invention of exclusive rights over terms which were widely used descriptively? Was it a justifiable impediment to legitimate trade to step in between a trader and a consumer and prevent the use of terms which both parties perceived and understood as descriptive terms? Australia had continued to encourage other Members to engage in a comprehensive review of the TRIPS provisions under Article 24.2. It was not a policy priority or interest for Australia to dwell on this issue at all. For her delegation, the TRIPS Agreement locked in an important safeguard: if a trader sought to misuse a geographical indication so as to deceive or mislead the public, legal remedies must be provided. Her delegation believed that WTO Members would be doing their trade interests a much greater service if they were to focus on how best to implement this vital safeguard in actual practice, so that tangible benefits were assured. This would also be a more effective way of ensuring due respect and protection for valuable geographical indications than any abstract debate conducted without even troubling to determine whether a collective understanding existed on the terms used.
111. In order to further clarify her delegation's thinking, she said, referring to suggestions made that it was not productive to discuss specific examples, that Australia believed that it was highly misleading to speak in generalities, precisely because expectations about what would result from this process varied greatly. Whatever one's view was of Article 24.1, it unquestionably required attention to "individual geographical indications". Consequently, those who were urging work on the basis of Article 24.1 could hardly say that it was inappropriate to discuss "individual geographical indications". Her delegation's suggestions on "sequencing" had been challenged. However, Australia was not advocating that a review process should take precedence on legal or formal grounds; it was saying that it would lead to better outcomes for all. Her delegation was suggesting it as a way of cultivating consensus on substantive issues, in contrast to the process of exchanging views on pure process or procedural issues. Australia was interested in the suggestion from Switzerland that Article 22 was unsatisfactory, even though it required rigorous legal remedies in the case of misleading or deceptive misuse of geographical indications and other forms of unfair competition the suggestion being that greater legal certainty would be achieved through the application of Article 23. However, this was to argue for the kind of absolute and unqualified form of protection that should give pause to anyone concerned to see a balanced intellectual property system. Absolute protection of intellectual property rights for the sake of certainty as an end in itself was not practiced elsewhere in the field of intellectual property, where important safeguards and fair use exceptions applied. Trademarks under the TRIPS Agreement were not protected in absolute terms – the Agreement required that there be "a likelihood of confusion" to be established for infringement to occur, even though that was short of legal certainty. Copyright was open to various forms of fair use exceptions. Patent law normally had provisions for prior use as a defence against infringement. Absolute protection should not be an end in itself.
112. Her delegation would not comment in detail on the Secretariat summary paper at the present meeting, since it was still studying the document.