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

Ambassador Carlos Pérez del Castillo (Uruguay)
40. The representative of Australia wished to express some further views, in addition to the comments she had made during the informal consultations. She acknowledged the interest of some countries in securing better protection for geographical indications, which they perceived as intellectual property assets. However, in her view, their proposals might not deliver the expected benefits. She believed that closer attention to actual national systems would be more productive. The TRIPS Agreement established that no protection was required at all unless a geographical indication was protected in the country of origin (Article 24.9). Moreover, much of the notified national legislation made little practical distinction between 'normal' and 'extended' protection. Actual implementation by a wide range of Members should be considered as the most reliable guide to further action and the voluminous information that Members had requested from one another under Article 24.2 should be given serious attention. Members might well find that, rather than advancing their interests, a rewriting of the rules would simply add to the administrative burdens of TRIPS implementation with no net benefit. There was no guarantee that any of the specific geographical indications that had been mentioned in the debate would actually receive any further protection at a national level in the event that the TRIPS Agreement were rewritten. Despite Members' demands for detailed information under Article 24.2, and parallel processes underway in WIPO and the OECD, there had been no serious endeavour to consider and review that information and draw practical conclusions from it. As a priority, the Article 24.2 review should be extended to those developing countries for whom TRIPS implementation had recently fallen due. Geographical indication protection involved a diverse range of legal means, as the number of mechanisms already notified and reviewed made clear. In fact, it was not surprising that no synthesis of this information had yet emerged. In this respect, Australia had cautioned, at the time that such a synthesis had been proposed, that it would be difficult to force a diverse range of legal means into a single template. The review should be informed and shaped by the full range of national approaches taken and not be dominated by the legal systems of the minority of Members which had notified prior to this year. This would ensure a balanced, practical and informed approach to consideration of this item, rather than the pre emptive approach which had been evident so far. 41. In relation to the multilateral register to be established under Article 23.4, the representative of Australia said that the TRIPS Council's mandate was limited to the substantive negotiations already stipulated in Article 23.4, unless it was given a clear directive otherwise. This applied equally to any proposal to broaden the scope of the proposed register. The TRIPS Council simply had no mandate to do this and any expanded mandate would need to be established in the appropriate body. Australia opposed any proposal that would in itself create new obligations or administrative burdens for Members and stressed the burdensome nature of such proposals for countries still implementing the TRIPS Agreement. It opposed any system that created a presumption that a notified geographical indication should be protected by participating Members; that presumed a formality based registration system at a national level; or that expected automaticity of protection beyond existing national mechanisms. It had not been considered necessary under the TRIPS Agreement to override or pre-empt national decision-making processes on trademark or patent protection to create default global protection for individual intellectual property rights, even for well-known marks which were viewed by some as having global reach. Geographical indications should not become default global rights without reference to the specific commercial conditions and legal situation applying in the jurisdiction of each Member concerned. Article 23.4 existed only to facilitate the protection of existing rights, not to create new rights. It should not operate to overrule or pre-empt national geographical indication systems. It remained the prerogative of Members to choose the legal means for geographical indication protection that most served their interests. Many had good reasons for not choosing the burdensome approach of a pre-emptive registration based system, with all the resource demands of such a system, and might instead choose non-registration systems. For some countries, the use of general consumer protection or unfair competition law should be sufficient to meet the TRIPS obligations. 42. The representative of Australia said that she remained engaged in the mandated negotiations on this issue and committed to moving the negotiations forward. She suggested that, in moving this issue forward, Members should concentrate on clarifying some of the more important substantive questions, such as whether there was any legal basis for using the register to create new obligations or a presumption that individual geographical indications should be protected; whether Members would be obliged to establish formality-based registration systems for geographical indication protection, beyond their existing obligations to establish legal means; how Members interpreted and intended to respect the optional nature of the register; how Members could maintain the distinction between the Article 23.4 register negotiations an existing negotiating process initiated some two years ago and proposals to expand Article 23.1 protection to products other than wines and spirits; and why the existing multilateral register (namely the Lisbon Agreement, dating from 1958) had been unappealing to the overwhelming majority of WTO Members (only 19 countries had ratified this Agreement over 42 years). The lack of clarity about the proposed register seemed to be a further consequence of reversing the natural order of reviewing national implementation before creating new mechanisms and new obligations. The pressing task confronting the TRIPS Council admittedly more difficult and complex than the top-down, prescriptive creation of new obligations on intellectual property rights was to review how geographical indications were already protected in WTO Members, and from that to draw conclusions about how that protection could be facilitated through a multilateral notification and registration process.