70. The representative of Australia said that her delegation considered the words "in order to facilitate the protection of" to mean to facilitate, through appropriate procedures, the obtaining of the level of protection that already had to be given to geographical indications for wines and spirits pursuant to the TRIPS Agreement, and not to enhance that level of protection. If the drafters of the TRIPS Agreement had foreseen that the multilateral system would involve an increase in the level of protection, they could and would have explicitly spelt this out. She noted the differences between Article 23.4 and Article 24.1. The former referred to facilitation, the latter to increasing protection under Article 23. "Facilitate" was defined in the Collins English Dictionary as "to assist the progress of". "Progress", in turn, was defined as "movement forwards, especially towards a place or objective". As such, "facilitate" could be seen as connoting movement forwards, along a horizontal pathway towards a defined goal. Its meaning was thus clearly distinct from the concepts of enhancing or increasing, which would involve an upwards trajectory. Responding to the question raised in the Chair's note, she said that the purpose of the multilateral system was to assist Members' nationals to attain progress in applying the existing level of protection for geographical indications for wines and spirits, as set out under Article 23. Article 23.4 was drafted as an integral part of the special rules of Article 23 relating to the protection of geographical indications for wines and spirits. Legally, Article 23 was best characterized as a lex specialis which would take precedence over the general rule for the protection of geographical indications set out in Article 22. Therefore, when talking about facilitating the protection of geographical indications for wines and spirits, Members were referring to facilitating the protection provided under Article 23. Therefore, there was no need for the multilateral system also to facilitate the protection provided under Article 22. It was not the purpose of the multilateral system to endow geographical indications for wines and spirits with a higher level of protection than that currently provided to geographical indications for wines and spirits in Article 23. Nor was the purpose to confer a supranational or global level of protection on them that would go above and beyond the protection accorded to any other type of intellectual property right. That could occur if Members found they were deprived of the right under the principle of territoriality to apply their own laws in making determinations about intellectual property protection within their borders. That would tie up for the exclusive use and economic rent of a few very wealthy countries the use of certain names. Australia could not accept any multilateral system of notification and registration that would have those kind of effects.
71. From her delegation's reading of other relevant multilateral systems of notification and registration, such as the system under Article 6ter on official signs and hallmarks in the Paris Convention, the Hague Agreement in the field of industrial designs, and the Madrid Protocol in the field of trademarks, these systems all relied ultimately on determinations under domestic law to determine eligibility and protection. What her delegation was committed to doing was negotiating a multilateral system designed to assist the nationals of participating Members to achieve progress in the existing level of protection for geographical indications for wines and spirits, as set out under Article 23. With such an objective, the system would perform a distinct and value added operation within the context of the existing rules, but without creating any obligations additional to those already set out in the Agreement. Developed and developing country Members were already obliged to implement Section 3 of Part II of the TRIPS Agreement in the manner most appropriate to their own legal system and practice as provided for under TRIPS Article 1.1.
72. On the way in which the provisions of Article 24 should be taken into account in the multilateral system, given that the system did not foresee any increase in existing levels of obligation, there was no question that all the exceptions set out in Article 24, in particular the grandfathering clause for geographical indications for wines and spirits (Article 24.4), the trademark exception (Article 24.5) and the exception for customary use (Article 24.6) must continue to apply. Members participating in the system must be able to continue to assert their rights under those provisions. The practical mechanism by which Members could assert their right to the exceptions of Article 24 required further discussion. However, her delegation wished to flag that, as for the Article 22.1 definition, the principle of territoriality was a crucial issue. The history of use of particular claimed geographical indication terms, and hence the applicability of the exceptions, would differ from Member to Member, and that fact must be fully reflected in any multilateral system. National courts would be best placed to make determinations about the use of particular terms in a country.
