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Ambassador Eduardo Pérez Motta (Mexico)
152. Responding to the delegation of Jamaica, the representative of Australia said that the Council had agreed that the definition of a geographical indication clearly encompassed country names. But he was puzzled by the unequivocal assurance, accompanied by some examples, made by the representative of the European Communities during this meeting, according to which a country name did fit into the definition of geographical indications. He was perplexed with the difference between the rhetoric of what the European Communities said and the reality of what it practised, as illustrated by EC Regulation 2081/92, which referred to geographical indications for a country "in exceptional circumstances". Additionally, a recent EC wine regulation (Regulation 753/2002) stated that imported wines with indications "serving exceptionally to identify a wine as originating in the territory of a third country could only be used if they were listed in Annex IV of the Regulation". However, Annex IV was a blank page with no country listed on it. In this regard, he posed the following questions: As a matter of practice, and also bearing in mind what the European Communities and other demandeurs of extension and of an international register wanted, would terms like "Bulgarian yoghurt", "Jasmin rice", "Chinese tea", "Kenyan coffee", "Hungarian salami" or "Jamaican rum" be allowed to be registered as country geographical indications? In practice, would claims to protect Thailand or China, or whatever other country name, be accepted irrespective of the product to which the Member sought to attach that name? Or, would this only happen in the most exceptional circumstances? And, if so, what were they? He also recalled that, in the case of wine, no country with which the European Communities had a bilateral TRIPS-plus agreement had been allowed to use the name of their country as a name for wine. In others words, one would not be permitted to use, e.g. "Australian Chardonnay" on the label. 153. Recalling that the representative of Bulgaria had again highlighted the reputation of its "yoghurt" and "feta", a reputation to which he also attested, the representative of Australia said that if the demandeurs of the extension got what they wanted, there would still be no guarantee that Bulgaria, or any other country-name like Bulgaria, would be accepted as a geographical indication. Actually, if Bulgaria acceded to the European Communities, it would not be permitted to use the term "feta" in the products it exported to the European Communities. And, furthermore, if the demandeurs succeeded, regardless of whether Bulgaria joined the EC, Australia would be forced to prohibit the imports of Bulgarian "feta" because in the European Communities this would be a protected Greek term and, therefore, it would be in the register. And because it would be in the register, Australia would have no obligation to accept and protect it, unless it wanted to go into lengthy dispute settlement procedures. 154. He recalled that Switzerland and Bulgaria had explained that an extended GI-regime would only apply to new geographical indications. Did this mean, then, that something like "Ceylon tea" and "Indian Basmati rice" would not be covered? This was an important question because it seemed to him that those developing countries that had supported the idea of extension had done so on the assumption that a country name, and their commodity, would be accepted on this international register that the demandeurs were seeking. 155. As to "traditional terms", he recalled the EC representative's statement according to which "non-geographical names" were unquestionably not covered under the definition of a geographical indication. If this was so, why, then, the European Communities in its official press-statement on the "wine GIs", when it came to some "traditional expressions", implied very clearly that this was indeed covered by the TRIPS definition of geographical indications? One, however, could not have it both ways. One could not, on one hand, give assurance that anything it will do on "traditional expressions" would not be done under the TRIPS Agreement, and, on the other, give an official press statement saying that these same "traditional expressions", which were nothing more than normal English adjectives, would be covered as geographical indications. So, what would exactly be the status of, for example, the European Communities' traditional specialty goods? How would they be linked to particular countries? It was not clear, then, whether extension would necessarily have no implications for Article 22.1 of the TRIPS Agreement, as the demandeurs claimed. That, he believed, was a question all Members needed to decide. What was clear to him was that the way Article 22.1 would be structured and interpreted would have significant implications for all Members, including those with particular ambitions in relation to particular products, and those that would have to implement and enforce a wide variety of products on behalf of the other Members. 156. Concluding, he also recalled the EC representative's previous statement that just because some countries provided in their domestic legislation for provisions, measures or concessions that would go beyond what they were officially called upon to do under the WTO, so ipso facto those countries had to support extension in fora like the WTO. He did not think there was anything that suggested this premise. There was no basis to think that just because a country did something in its own national interest, that therefore it had to be prepared to come to the WTO and enter into a commitment to an undertaking which would go far beyond what it had done nationally. Actually, the key point under the TRIPS Agreement, when it came to geographical indications, was the principle of "territorial application", in other words, each Member would decide whether a geographical indication was a geographical indication or not. Under the proposal of the demandeurs, however, that right would be taken away and exchanged to a complicated process of international registration, of challenges, of disputes, and arbitration, which would be performed by people that would not be officers of the governments of the Members. So, by its very definition, the additional protection that the demandeurs were seeking for products other than wines and spirits would go well beyond the current rights and obligations under Article 23.