102. The representative of the United States said that his delegation wanted to take the opportunity at this formal meeting to set out what the impact of the EC proposal would be on the US legal system, and how the joint proposal would be implemented in the United States. As had been pointed out previously, the reversal of the burden of proof envisaged by the EC proposal would be a fundamental change, not just in the protection of GIs in the US, but also in intellectual property protection more generally. The burden of proof in the US system was upon the person or entity that was seeking the intellectual property right. That person or entity had to affirmatively demonstrate that it deserved this right whether it was a GI certification mark or a trademark. The EC proposal did quite the reverse. It presumed that, because this term was on a list in another country, the burden of proof was on everybody else to show that it should not be protected. This effect of reversing the burden of proof was not just incidental to the United States system, but concerned basically the system as it existed within TRIPS and for intellectual property protection more generally. For those who already had rights, this reversal put a burden on them to defend the rights they thought they already had, e.g., a trademark holder would have to defend his trademark against the presumption that a GI in Europe, or some other country, that was on the register should enjoy protection in the US. The EC claim that the exceptions spelt out in Article 24 would apply did not change the fundamental fact of who had to prove what under the EC proposal.
103. Regarding the joint proposal, the US would operate in very much the same way as Australia had just set out: it would be embedded in the procedures of the patent office that a trademark examiner had a responsibility to consult the register. If the trademark examiner had not done that properly, this would be a basis for a complaint and a challenge of the decision. Having that information on the register would allow the examiner to complete or verify certain information that had to be checked during the examining procedure. Examples for such information would be questions like: Was the term primarily geographic? Was it remote or obscure? Was there a goods place association, such that the US consumers were likely to believe that the goods came from the place indicated as its origin? Did the applicant for this protection exert control in its home market? With regard to such questions that the examiner had to go through in order to make a determination, the register of the joint proposal would actually provide real value, certainly more value than a situation without such a register, and would therefore fully meet the mandate. He hoped that other Members would also recognize the value of the joint proposal.
