55. The representative of the United States recalled that in 1999 the United States, along with Canada, Chile and Japan, introduced a proposal for the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits (IP/C/W/133/Rev.1). He took note of the observation made in paragraph 5 of document TN/IP/W/3 that, to date, only the proposals made by the EC and their member States made a genuine attempt to fulfil the requirements of Article 23.4. He recalled that, prior to the Doha Ministerial Conference, there was a discussion in the TRIPS Council about whether proposals could apply to geographical indications for products other than wines and spirits. He wanted to clarify that, given the very clear and narrow mandate the Council had from the Doha Declaration to establish a system that addressed wines and spirits, his delegation's comments would be limited to a system of notification and registration for wines and spirits only.
56. He associated his delegation with the statements made by Australia, New Zealand, Canada and other countries, especially with respect to the differences Members might have with respect to the definition of "geographical indication". Responses to the checklist of questions under the Article 24.2 review revealed that the determination of what would constitute a geographical indication did vary under the laws of the different Members that had provided information. That reflected the fact that geographical indications, like other intellectual property rights, were territorial in nature. The lack of a common interpretation of the definition of a geographical indication under Article 22.1 would be likely to result in terms being notified by a Member that other Members regarded as ineligible for protection under their own national laws. Because the terms to be notified would have to be regarded as "eligible for protection" by the Member notifying, that Member must, however, have recognized that the term was a geographical indication and was protected as such under its national law. In his delegation's view, negotiations were unlikely to resolve the differences in views, because each Member would approach the issue from the angle of its own national law. Some Members had objected to any discussion of the definition of a geographical indication that might lead the Special Session to establish a common understanding of the term. His delegation supported such a discussion. In the absence of a clear and common interpretation of Article 22.1, implemented in the national law of all Members, his delegation believed that the best means for resolving any dispute over the notification of a particular geographical indication by a Member should be made under the national law of that Member by any concerned party rather than through an opposition procedure managed in Geneva under the auspices of the WTO. If a challenge under a Member's law were successful, that Member would have to withdraw the notification of that term. If unsuccessful, the term could remain on the Member's notification and be registered, but given the territorial nature of geographical indications, its presence would not guarantee that it would be eligible for protection under the laws of other WTO Members or that an exception to its protection would not exist in the markets. The territorial nature of geographical indications was reflected in the use, particularly in connection with exceptions under Article 24, paragraphs 4 through 8, of the phrases "in the territory of that Member" and "in that Member". Some claimed this would create uncertainty that interfered with market access but there was no more uncertainty with respect to geographical indications than with any other form of intellectual property or, for that matter, many other matters related to business. A system of notification and registration of geographical indications for wines and spirits should be available to Members, producers and consumers, providing information not currently available, and in that way would facilitate not only the protection of such geographical indications, but their selection by Members in the first place. Those seeking to establish new geographical indications would have information available that could be searched in the same manner as in trademark registers or patent databases to determine if prior rights already existed in a trademark or in an invention.
