88. The representative of Australia said that the interventions by Argentina and the United States had begun to focus on the issues that the Council had to address. He believed that no delegation would ever deny another delegation the opportunity to table a proposal for negotiation on any subject, irrespective of whether the WTO was in negotiating mode or not. However, it was presumptuous and unhelpful for a group of delegations to put forward a proposal to extend rights and disciplines when Ministers had specifically charged Members to examine the issues relating to the implementation of an agreement which was already in force. He was prepared to engage in a debate about the mandate in the Doha Declaration relating to the extension of IP protection for products other than wines and spirits though his delegation did not think it was very valuable. Taking account of the significant differences that existed before Doha, Ministers had decided that the best they could do was to ask the Council to look at the issues and to report to the TNC by the end of the year. They had not initiated negotiations. He disagreed with the Chair's statement earlier in the meeting that a thorough discussion of the issues had taken place at the March meeting. Members had only began to talk about the issues. He recalled the reaction the previous week at the TBT Committee to the new EC wine regulations which were notified to the Committee. There was little interest or incentive for a large number of interested delegations to begin contemplating a new set of obligations until Members were satisfied that parties to the TRIPS and TBT Agreements were prepared to conform with their existing obligations. He said that a large number of non-European wine exporting countries voiced serious reservations about the new EC wine regulations which, inter alia, were based on an interpretation of the TRIPS Agreement that was not shared by others. In their justification for new protectionist measures, the European Communities had claimed that certain traditional terms which they had reserved for their exclusive use were in effect covered by the TRIPS Agreement's definition of geographical indications. This was despite the reassurance he believed he had heard at the last meeting from the representative of the European Commission that traditional expressions had nothing to do with geographical indications. In those circumstances, his delegation was not interested in a proposal to extend additional protection to products other than wines and spirits until there was an agreed understanding of how the existing TRIPS Agreement was to be interpreted. Accordingly, like Argentina, his delegation was not in a position to engage in a discussion of the proposal in document IP/C/W/353. However, he remained committed to carry out the injunction which Ministers gave at Doha.
89. Responding to the point made by the representative of India on the desire of the demandeurs to protect their cultural heritage, the representative of Australia said that Australia, too, was concerned about the protection of its cultural heritage and worried that extension might impact on its desire to do that. She recalled that her delegation had spoken extensively on that issue in at the Council's meeting in March. As regards India's comments on the fact that Article 23 covered only wines and spirits, she said that her delegation understood the feelings that this generated and had some answers to that concern. She pointed out that Article 23 was not a negotiating goal of the wine and spirit sector in Australia nor did it reflect an acknowledgement that the balance struck in Article 23 was an ideal one for wines and spirits let alone other products. Australia's experience of the high level of GI protection in the wines and spirits sector had shown the costs associated with such protection, the administrative burden, and the pure economic rent that it gave to a certain group of producers in one region of the world. She associated her delegation with Argentina in that it had not been able to discern any practical benefits of this protection over and above that already contained in Article 22. It had not prevented Australia's trading partners from finding other means from keeping Australian wines out of their markets. Finally, in response to India, on the term "Australian St. Emilion", she noted that, according to some Members in the Council, Australia would not even be allowed to use the term so that was a non-issue.
90. She recalled that at the Council's meeting in March, the Australian delegation had outlined a number of issues that required discussion, including the trade and welfare implications of extension. It had raised the question of the competing interests that must be balanced in any GI protection regime and how the appropriate balance of such interests could be determined. As previous TRIPS Council submissions by Australia and others had pointed out, the potentially conflicting interests included those of consumers, producers of a product with a distinctive reputation or tradition of production, and producers who had an interest in unrestricted use of common product descriptions.
91. Referring to the case of the protection of "feta" cheese under EC Regulation 2081/92, and its impact on non Greek European producers of that product, she said that France, Germany and Denmark had been contesting since 1994 a claim by Greece over the latter's bid to claim the exclusive right to use the term "feta". France, Germany and Denmark had claimed that, on the basis of patterns of production and consumption in their countries, "feta" had, for them, become a generic term. Despite their best efforts, however, in June 2002, the EC had announced a proposal to register "feta" under the European GI registration system. The proposal would enter into force later in the year unless the European Council voted against it.
92. Non-Greek EC producers were not happy about that. At the WTO symposium in May 2002, the Danish Dairy Board had expressed its views on the feta case. It characterized feta as a "world commodity" and that it was unacceptable that the term be reserved for the exclusive use of one EC member State. She said that it apparently had cost Denmark 1.5 million Euros to argue its case, which it lost, before the Commission. She believed there were similar situations with French and German feta producers. Under the Commission's proposal, Australia would be obliged to follow the EC practice. In an Australian delicatessen, there was Greek feta, Bulgarian feta, Danish feta, German feta and French feta. If the Commission had its way, consumers would find, in the delicatessen, Greek feta and a variety of other white cheeses which they had no idea about. Was this in the interests of consumers? Not Australian consumers.
93. She said that this case demonstrated perfectly the kind of administrative nightmare that could arise over the use of just one term, and how inappropriate balances could be struck. It also demonstrated how the application of the TRIPS GI exceptions, in this case the customary use exception, was far from cut and dried. If the Commission succeeded in its proposal to reserve feta to Greece, the decision would not only have implications for the three EC member States mentioned. Bulgaria, for example, was also a feta producer. In fact, soft white cheese labelled as "Bulgarian feta" commanded a premium price at gourmet food stores in Australia. She believed that no Australian consumer who bought "Bulgarian feta" was deceived or misled about the origin of that cheese. With Bulgaria in the process of acceding to the EC, including the EC GI regime, if the European Communities had its way, very soon Australian consumers would no longer be able to buy "Bulgarian feta". This would certainly be a loss for them. But it would also be a loss for the Bulgarian feta producers, who might never find a successful means of marketing their exported soft white cheese in Australia.
94. Extension had been characterized by Ministers as an implementation issue and that, as such, the Council should address the issues related to the extension of additional protection to products of specific interest to developing countries. She drew Members' attention to an article in the May edition of the publication "Bridges" published by the International Centre for Trade and Sustainable Development, entitled "Extension of Stronger Geographical Indications Protection: Against the Interests of Developing Countries". Taking the example of basmati rice, she said that a food standards agency in that part of the world had recently undertaken an exercise, in the interests of consumers, to find a legal definition for the term "basmati". The work involved research into the establishment of DNA profiling to trace the properties of rice, and the development of a method of tracking certain premium rice varieties. She said that the prospect of DNA profiling for basmati suggested strongly that that term could not be a GI. If the variety could be identified genetically, then it was difficult to see how it could also have a geographical limitation. If that was correct, then extension of Article 23 to other products would have no added value for protection of basmati rice.
95. Her delegation had recently undertaken research on coffee production and trade in Africa. With real coffee prices at around half of what they were in the 1960s, it was understandable that coffee producing countries, especially those that were heavily dependent on export income from coffee, looked to ways to improve their returns. In that context, the potential benefits of geographical indications for coffee had been held out as an answer to the falling prices received by producer countries. However, considering a range of issues related to coffee production and trade, including the production chain, the way coffee was branded and marketed and by whom and the resources involved in those activities, her delegation's research indicated that GI protection would offer no solution to the systemic causes of declining coffee prices. Indeed, her delegation had concluded that as a potential legal remedy, geographical indications offered no obvious advantage over existing alternatives. The benefits promised through extension of additional GI protection to coffee are illusionary. Where coffee producers did stand to gain was through market access negotiations directed at substantially reducing tariff escalation in major consuming markets.
96. Australia had for several years been saying that the Council should undertake a thorough examination of national models of GI protection and thereby reach a better collective understanding of the available implementation methods, what was effective and enforceable and what was not and what were the costs associated with each type of system. Australia hoped that the debate later in the week under Item M (Article 24.2 review) would shed light on those issues. Her delegation urged for input and advice from developing countries an essential first step was for the Council to engage in a serious discussion about national systems. This was a necessary precondition to enable Members to come to an informed decision about what action, if any, Members should recommend to the TNC at the end of the year.
97. The documentation submitted by developing country Members in their reviews of national legislation appeared to indicate that some developing country Members did not yet have any GI protection regime in place, nor was it clear when they would be enacted. At the same time, demandeurs, including some without any GI protection in place, were claiming that the current TRIPS text should be rewritten to extend Article 23 to all products. She was concerned that demandeurs were advocating a re write of TRIPS text before some Members had implemented the current protection, let alone had the chance to determine from practical experience what, if any, changes were desirable.
98. Australia had also raised at the March meeting of the TRIPS Council a series of questions concerning the practical operation of the Article 22.1 definition of geographical indication, application of the various exceptions to GI protection and other technical issues related to the existing rules. One month before the present Council meeting, IP experts at a meeting of the WIPO Standing Committee on Trademarks, Industrial Designs and Geographical Indications (SCT) took part in perhaps the most substantive multilateral dialogue to date on geographical indications. As a long-time advocate of the need for substantive multilateral GI discussions, Australia was pleased to have participated in that debate. One of the things her delegation took from that meeting was that there was a need for the TRIPS Council, as the body charged under TRIPS Article 68 with responsibility for "monitoring the operation of the TRIPS Agreement", to undertake its own discussion on the issues raised in the WIPO SCT as they related to the specific rules set out in the TRIPS Agreement. Intellectual property experts in the SCT had noted that it would be inappropriate for the SCT to discuss specific TRIPS provisions. For that reason, it was vital that the TRIPS Council undertake that task as the responsible body. She requested the Secretariat to circulate a copy of the SCT minutes as a TRIPS Council document when they become available.
99. The representative of Australia said that one of the main topics of discussion at the SCT was the definition of a GI. The basic outcome of the debate was that more work was needed in this area and it was agreed that the WIPO Secretariat would prepare a new paper on the topic for discussion at the next SCT meeting in November. Some of the topics to be covered in that paper included the application of the definition at the national level by different systems of protection, the practical differences between the systems of protection of geographical indications such as appellations of origin and the system of protection under collective and certification marks, links between the product and its geographical origin and issues related to reputation, and whether the goods on which a GI was used must necessarily be produced in a particular place. She said that some of those issues were fundamental to the very concept of geographical indication. The fact that intellectual property experts were having to consider them demonstrated that the international dialogue on geographical indications was still at a very elementary level. Her delegation was struck in WIPO by the number of developing countries that had indicated their great interest in seeing the substantive dialogue continue and shed more light on that difficult area. The WIPO Secretariat had also been tasked to prepare a paper on the issue of territoriality, i.e., the concept that intellectual property rights were only valid in respect to the territory for which they had been acquired and in which they could be enforced. That paper would consider two aspects, first, whether the criteria for eligibility of a term for protection as a GI were determined by the country of origin of the GI or by the country where the protection was sought, and, second, how relevant GI exceptions were applied. Those issues raised very basic elements of how GI protection regimes operated in practice. There was a need to consider those issues with direct reference to TRIPS rules.
100. She proposed, in response to the Doha Declaration mandate from Ministers that Members consider "issues related to extension", that the TRIPS Council take up five issues for discussion at its September meeting. Firstly, the definition and application of TRIPS Article 22.1; secondly, the impact of the principle of territoriality on the implementation of TRIPS Section 3; thirdly, the interaction between trademarks and geographical indications in light of relevant TRIPS provisions, such as Articles 16 and 24; fourthly, the cost differential between Article 22 vs. Article 23 protection; and finally, the Article 24 exceptions.
101. The new EC wine Regulation No. 753/2002 had been notified to the WTO two weeks prior to the Council meeting and discussed at the previous week's TBT meeting. The new Regulation restricted the use of descriptive and/or generic terms such as "chateau", "vintage", "ruby" and "tawny", terms which had no specific connection with a geographical source, on the basis that their use may cause consumer deception. Australia was unable to accept the concept lying at the heart of the new Regulation that a WTO Member could reserve for the exclusive use of one of its industries common adjectives and other descriptive terms. She could not accept that reserving the exclusive use of common English language words like "ruby" and "tawny" was the least trade restrictive means of achieving any legitimate objective. Nor would she accept the claim made by the European Communities that so called "traditional terms" had any connection with intellectual property rights. Most of the terms listed in the various annexes to the Regulation were nothing more than common descriptive adjectives, and the EC's efforts to reserve them for the exclusive use of the wine industries of EC Member states could not be legitimized by seeking to claim them as intellectual property rights.
