Compte rendu ‒ Conseil des ADPIC ‒ Afficher les détails de l'intervention/la déclaration

Ambassador Eduardo Pérez Motta (Mexico)
72. The representative of the Australia said that a range of broader policy issues existed that were neither dealt with in the Checklist of Issues nor discussed by the TRIPS Council. It seemed to him that the first policy issue would be whether any new or extended IP rights should be attached to food and other like products. IP rights were normally granted to those who had discovered or created something. Protection was given to creators, scientists, inventors, authors and researchers in order to reward them for having come up with new products, new processes and new works of art. At the same time, they, and their investors, were given an incentive to continue doing so. By protecting these IPRs, governments were in effect rewarding them with a monopoly for their creative work. But the important question worth asking was whether governments should grant similar monopoly rights based on an accident of history where there would be a geographical connection to a product. He had serious doubts about such a proposition. 73. He believed that Members should be very cautious about the examples that had been cited by demandeurs to show that the adoption of a GI had led to market benefits. None of the examples had showed that GIs were the determining factor in the success of a product. The causal factors of any increase in market share could be many and varied. For example, a full and proper analysis would have to weigh up the relative contribution of various factors in this regard, such as exchange rate movements, the relative efficiency of distribution channels for different products, the extent to which consumer preferences were driven by a company, a country of origin, reputation distinct from the GI itself, and the quality, quantity and accessibility of competing like-products over the period being measured. It would, therefore, be very difficult to see how many of the statistics presented could convincingly attribute increased prices and market share to a GI. A dramatic increase in New World wine exports to the EC market could not be explained on the basis of the benefits of the higher level of GI protection accorded to wines as most of these countries, and, until very recently, most of the New World wine suppliers, had not had bilateral agreements on the protection of their wine GIs in Europe and, therefore, had not benefited from the same level of protection as European producers. Rather, the success of New World wine exports were attributable to strong competition on price, on quality, and on effective marketing. The export success of the Australian wine had being primarily due to the fact that it was a quality product that had been offered at a competitive price, effectively marketed as Australian, and assisted by a domestic regulatory structure that supported international competitiveness for Australian industries. 74. However, when talking about wine being successfully marketed as an Australian product, one should not forget that the European Communities were strongly opposed to the concept that "Australia" would be regarded as a GI. He was convinced that many of the terms Members sought to protect as GIs would, at the end of the day, not receive such protection. Countries would find out that the terms they wished to protect did not fall within the definition contained in Article 22.1. Australia had raised the specific issues of country names and blending as examples of the differences between a theoretical understanding of what Article 22.1 could cover and what some countries interpreted that provision to encompass when it was implemented domestically. The question of what would or would not fall within Article 22.1 was fundamental to assessing what benefits producers would obtain from increased protection in export markets. 75. The exceptions contained in Article 24 provided an important balance vis-à-vis GI rights. These exceptions recognized that there were other legitimate uses of terms claimed as GIs and that such uses should be allowed to continue. Many terms that had been advanced to date were likely to fall within these exceptions. The Czech Republic had noted at the Council's last meeting that the word "pilsner" was a generic term. He agreed with this assessment, and said that it would be virtually impossible to claim protection for this indication. But the same would go for many other products which several Members of the Council believed they would be able to protect, one example being "feta cheese". Many of the terms demandeurs had been advancing as worthy of protection had been used in international markets for decades and producers of those goods had failed to do anything to protect them or to enforce their rights. In the case of the EC markets, extended protection would not provide the level of protection currently afforded to EC producers. He referred to paragraph 3 of document IP/C/W/353, in which demandeurs stated that the proposal on extension would only be designed to have effect for the future and would not affect existing uses of names that coincided with protected GIs to the extent that they had been in conformity with Article 24. Did this mean then that the producers of terms such as "basmati" and "Ceylon tea" would not expect to obtain protection at the higher level? 76. Continuing, the representative of Australia said that he sought to focus Members' attention on implementation of the existing provisions. Members' failure to fully and appropriately implement existing obligations was leading to the misconception that existing levels of protection were inadequate. Further, the failure of many Members to protect their GIs domestically would lead to a refusal by others to recognize these GIs in export markets. As noted in a paper Australia had sponsored on the implications of extension (IP/C/W/360), it appeared that "basmati rice" and "jasmin rice" were still not protected domestically, leaving it open to other Members under Article 24.9 to deny protection on the basis of lack of protection in the country of origin. 77. Producers also needed to be aware that establishing rights to a GI domestically would entail costs. Domestic producers wishing to establish a GI needed to mobilize other producers in the region to create a consensus. As the example of "feta cheese" in the European Communities demonstrated, reaching intra-domestic consensus could be a difficult process. Producers would need to settle the territorial limits within which the essential link to a quality, reputation or other characteristic of a product would apply, and also decide what would be the criteria that would apply in determining when a GI could be used. These processes could cause conflicts between domestic producers that would need to be adjudicated. Such efforts would also likely require government lobbying, studies to demonstrate the geographical boundaries, as well as defending claims by producers who would be left outside of the boundaries. Such costs could not be easily borne by developing countries' producers or industries, which were dominated by small and medium size enterprises. 78. Discussions had also overlooked the fact that producers could not expect to sit back and do nothing to protect their rights. A higher level of protection would not change this. Article 23.1 would still require Members to take action to enforce their rights and this would result in costs. This was entirely consistent with the protection of other types of IPRs. Producers benefiting from those rights must bear the costs of protecting them. Thus, the extent to which producers would actually benefit from a higher level of protection would also depend on the extent to which producers would be willing and able to enforce their rights. 79. Demandeurs had claimed that the higher level of protection would not entail significant costs to producers. The representative of Switzerland had said that the costs of re-labelling were quite immaterial. Australia's experience was quite to the contrary. Producers prevented from using terms claimed as GIs were subject to significant adjustment costs, including the costs of re-labelling. Given that the TRIPS Agreement did not contain any transitional period for the phasing out of claimed GIs, producers using such GIs could be subject to immediate claims to change labels. These costs would likely fall more heavily on small and medium sized enterprises that were producing goods for niche markets. Additionally, such producers would be subject to sanctions such as fines or court action. Furthermore, there would be the costs of defending their right to continue using a term. Claimants for extension seemed to assume that producers would and should automatically cease to use terms that were the subject of a GI claim under the higher level of protection scheme. This assumption ignored commercial reality. Producers who were subject to such claims would likely be willing to spend significant resources in defending their right to continue using such terms on the basis of the exceptions contained in Article 24. The Danish Dairy Board member and the Spanish wine producer who had talked at a WTO Symposium in May 2002 about their experiences defending their right to continue using the term "feta" for cheese, and a family name for wine, knew what sort of costs they had incurred in their defence. The parties involved in these Danish cheese and Spanish wine cases incurred many costs, such as costs with government lobbying, court actions, consumer surveys, the production of extensive information concerning domestic rules, statistics, market profiles, etc. 80. Furthermore, there were the costs of undertaking a country-by-country analysis of every export market. Producers would have to undertake such analysis for every export market to which they would export, or were planing to export, in order to determine whether they would be able to continue to use existing packaging and marketing material in those markets. This would be very expensive and would constitute an additional burden, particularly to small and medium sized enterprises and producers not supported by a strong collective industry structure. If producers failed to do this kind of research they would seriously risk subjecting themselves to sanctions or court actions in export markets accusing them of breaching another producer's GI. As to the question of the cost of developing a new name for a product, he said that a producer who was subject to a successful claim to cease the use of a GI would also have to invest resources in developing a new name for that product and in marketing that new product to avoid losing market share. These costs should not be underestimated, particularly when there was a need to launch a marketing campaign in an overseas market. There were also the costs associated with the loss of reputation and market share. 81. As to the implications for consumers, he said that, given that Article 22 protection already provided protection against misleading consumers, any increase in the level of protection to that contained in Article 23 would do nothing to enhance the level of information that consumers already had concerning the origin of a product. Extension would not therefore entail any cost-savings to consumers. Consumers' search costs would not be reduced. On the other hand, extension would likely entail increased costs to consumers. The costs with re-labelling, product name development and advertising that some producers would incur would undoubtedly be passed on to consumers through higher prices. Furthermore, under extension, there would be a limited number of producers and, as a consequence, consumers would only have available "Greek feta cheese" rather than, as in Australia, also "Danish feta cheese", "Bulgarian feta cheese", "Australian feta cheese", etc. Where were the benefits to consumers in that case?