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

Ambassador Eui-yong Chung (Korea, Republic of)
C.ii The purpose of the notification and registration system
73. The representative of Hungary referred to his intervention regarding the previous category of issues and the question of purpose. In his delegation's view, the mandate calling for the facilitation of geographical indication protection referred to the implementation of existing obligations and did not create substantive new ones. He noted that Article 1.1 of the TRIPS Agreement let Members decide the means of implementation of TRIPS obligations and, as the Article 24.2 review had shown, Members did opt for different systems ranging from unfair competition law and passing-off and trademark registration systems to registers of geographical indications. It was not his delegation's intention to call into question WTO Members' rights under Article 1.1 or to create substantive new obligations for Members as part of the establishment of the register. The reason to push for an effective system of registration with genuine legal effects was to help producers, consumers and administrations ensure the implementation of existing obligations. Simply put, in most cases it would be difficult, if not impossible, for the average right holder of a geographical indication or producers like Hungarian wine growers in small villages to enforce their rights under Article 23, because they would have to build their cases from scratch before local courts, in certain cases thousands of kilometres from home, under completely different legal systems. This would threaten to defeat the clear intention of WTO Members to provide the Article 23-level protection to geographical indications for wines and spirits. 74. On how the implementation of existing rights could be facilitated, the EC and Hungary had suggested that multilateral registration should have the legal effect of creating a rebuttable presumption of eligibility for protection. Responding to the reactions to Hungary's proposal, he said that it did not foresee and advocate the establishment of a supranational court in the framework of the system to be established. Hungary did not want a system that would impose decisions on national authorities and courts. Registration would just mean that those who used the names of others that were registered multilaterally would have to prove their cases in court, if challenged. Members would ultimately have the multilateral possibility under the challenge procedure proposed by Hungary to filter out geographical indications not fitting the definition and Article 24.9. The continued use of exceptions under Article 24 would also be ensured. In addition to the producers owning geographical indication rights, a register with the legal effect of creating the presumption of eligibility for protection would help consumer associations and national administrations as well. In that respect, he called the attention of delegations to the points made in paragraphs 19, 20, 21 and 22 in document JOB(02)/70 submitted by the EC and their member States. 75. Regarding the proposal by Canada, Chile, Japan and the United States (IP/C/W/133/Rev.1), he wondered if the database proposed would facilitate protection. First, it would not provide for a mechanism to filter out names that should not be protected. Second, it did not seem to have any real legal effect, since national authorities would only be obliged to refer to the list, together with other relevant sources of information and could decide to ignore the list altogether. He was not sure if such a system would justify the costs of its establishment and running. He suggested that the co sponsors elaborate on why, in their view, such a system would be useful for their authorities, especially in light of the fact that even names that were blatantly not in conformity with Article 22.1 or Article 24.9 could find their way into the database. Were they not concerned that such a list could create more confusion than clarity about which names should be given the Article 23-level protection? Were they not concerned that such a system could even give ideas on what to copy if wine producers saw that certain geographical indications were notified and automatically registered by more than one Member?