120. The representative of Australia referred to the statement by the EC that it was not seeking to change the checks and balances in the GI provisions in the TRIPS Agreement, that it was not seeking retroactive effects and that it was not seeking to undermine or change in any way the prior use or generic exceptions. While welcoming these clarifications, her delegation would be keen to see these reflected in writing in a proposal. These points were inconsistent with the EC proposals, both in their 2005 version and in their new thinking version.
121. Regarding the generic exception, the EC had said that it was not interested in changing the checks and balances. However, under its proposal it increased the protection of GIs because all terms entered on the multilateral register, entered all other Members' markets with the presumption that they met the definition of a GI under those other Members' laws. That would increase the protection of GIs without providing any certainty that in the export market context Australian producers would have the opportunity to rebut the presumption. So, in certain export markets it might be that the terms would be simply protected.
122. The other point that was raised regarded territoriality. The EC had indicated that their proposal would not require other Members to review all the terms. That was precisely the problem. Under the Madrid system (trademarks) in WIPO, which was consistent with the principle of territoriality, all trademarks were notified, sent to all trademark offices in the other Members, who would then have the opportunity to review them and reject them. She noted however that this feature of the Madrid system was not one which could be proposed in these negotiations because there was not yet enough harmonization of laws on GIs to enable that kind of system and because that would go well beyond the mandate.
123. In terms of added value, in reply to the comment made that a database as proposed by the joint proposal would not bring any added value, she said that this would be an unfair characterization. The argument was made that the database would not be anything more than the Internet. While the Internet could provide a whole range of different information, much of it would not be relevant to the task at hand. If Members had in one place a consolidated database of terms formally notified to the WTO by a government, how could it be argued to be the same as entering a GI into Google? This was simply not fair nor correct.
124. The point was also made that there would not be added value because the requirement not to allow trademarks to contain or consist of GIs was already in the TRIPS Agreement. In that regard, she said there was a mandate to facilitate the existing level of protection for GIs under TRIPS Article 23. So, the joint proposal did facilitate protection by facilitating the compliance with TRIPS Article 23.
125. Finally on the burden of proof, she asked for clarifications. Her understanding was rather than the IP owner having to seek and assert its own right and bear the burden of proving that its terms were distinctive or met the definition, that burden would be shifted to the others to defend their existing uses. She further added that discussions would be facilitated if there were a written text.
