Actas - Consejo de los ADPIC - Ver detalles de la intervención/declaración

Ambassador Boniface Chidyausiku (Zimbabwe)
90. The representative of Australia introduced the joint paper (document IP/C/W/289). She recalled that several papers had been put before the Council advocating particular positions in relation to the protection of geographical indications. In particular, a number of Members were advocating an extension of the scope of Article 23.1 to all goods. As her delegation and others had stated previously, there was no mandate in any of the TRIPS provisions for an extension of the scope of Article 23.1. It had been argued by some that Article 24.1 contained such a mandate but, as said before, Article 24.1 related explicitly to "individual geographical indications" under Article 23. Article 24.1 did not concern entire product sectors or industries, but rather specific negotiations on individual wine and spirit geographical indications which were already protected under Article 23. The joint paper did not constitute tacit support on the part of its co-sponsors for the argument that Article 24.1 contained a mandate to extend the scope of Article 23. Rather, the joint paper was a significant demonstration of their willingness to engage seriously, constructively and substantially in the extension debate, and an attempt to ensure that Members could make a measured and balanced assessment of the potential benefits and costs of change to the existing, TRIPS provisions. To date, the extension debate had lacked a serious assessment of the consequences following from any proposal that recommended substantial changes to existing provisions of the TRIPS Agreement and, in particular, those proposals to increase the level of geographical indication protection of all products. The joint paper sought to redress that imbalance. The calls for extension of scope had been based on the assumption that "additional" protection would deliver enhanced trade opportunities for Members and producers and greater protection to consumers. A threshold question examined in this joint submission was whether increasing scope would in fact lead to increased protection. Article 22 already obliged Members to facilitate the protection of geographical indications for all goods. A Member could therefore already enforce protection of a geographical indication, provided it was protected domestically, as required under Article 24.9. Protection under Article 23 was not absolute, and it was likely that a number of terms that Members wished to protect might not fall within the definition of a "geographical indication" in the Agreement, or would fall within one of the exceptions to protection set out in Article 24. The joint paper demonstrated a range of these concerns, and showed that extension of scope might therefore not be the panacea for more effective protection that some claimed it to be. It was worth noting that, if Article 23.1 were to be extended to other products, it would be necessary to extend the grandfathering clause of Article 24.4 to other products, such that if Members had already been using a particular term for at least 10 years, or in good faith before that, then they would not be obliged to give it up. Many of the well-known terms that some Members might be seeking to have protected at the higher level would be likely to fall within this category. In the rush to seek increased protection, a number of important issues had also not been raised, let alone fully discussed. The debate had failed to give any consideration to the flipside of increasing geographical indication protection which was increased costs for consumers, producers and Members. These include costs such as implementing new national laws and administrative procedures to fulfil new TRIPS obligations, which for Members without TRIPS-plus systems to protect geographical indications would involve considerable costs in terms of money and resources; the administrative and financial burden of protecting, at the enhanced level of protection, a large number of other Members' geographical indications, even if a Member had no, or only a small number of domestic geographical indications to protect; the possible closure of future market access opportunities for emerging industries, and the creation of uncertainty in existing markets due to the loss of the right to use terms that were familiar to consumers, even where consumers would not be misled about the origin of a product this was likely to be felt most acutely by producers in new and emerging dairy and processed food industries, amongst others; costs to producers, if they had to give up the right to use certain terms, of re-labelling, re-packaging and marketing their products; costs of consumer confusion caused by the disappearance of terms customarily used to identify products; and heightened risk of disputes between WTO Members and between producers in WTO Members concerning the use of particular geographical indications. Actual examples of a failure of Article 22 level of protection to protect a geographical indication had also been noticeably absent from the debate. If the inadequacy of Article 22 were so clear, there had to be numerous examples of producers failing in attempts to enforce legitimate rights. The co-sponsors of the joint paper recognized that geographical indications provide a means of promoting trade opportunities. Producers should be able to actively market their goods and services in a manner that did not impede trade or minimize the intrinsic value of geographical indications. WTO Members had a common interest in securing effective protection for their geographical indications. This was why there was an urgent need for an in-depth exploration of the existing rules. Members would only be in a position to weigh the relative costs and benefits of extension if there were a collective understanding of what was required to implement the existing rules. The co-sponsors of the joint paper invited countries advocating changes to the existing provisions of the TRIPS Agreement to specifically address the following three questions: (i) What costs for Members were associated with altering the existing provisions? (ii) What would be the effect on trade of altering the existing provisions? (iii) What would be the effect on consumers of altering the existing provisions? The onus lay squarely on the demandeurs to work actively to create a consensus, as they were proposing changes to the existing rules.