25. The representative of New Zealand welcomed the provision of additional information by the EC. The EC paper had allowed his delegation to develop a better understanding about how paragraphs 1-3 of TN/C/W/52 on the register of GIs for wines and spirits would operate in practice. In his delegation's view, this sort of process had been lacking over the past few years and it was a welcome step forward in terms of New Zealand's shared commitment to intensify the register negotiations. Although the EC paper had been received only a few days ago, his delegation had been able to identify some questions arising from the paper, and which had been communicated to the EC delegation at its request. The paper would be further examined by technical experts from all relevant agencies in Wellington. It was anticipated that there would be further questions about the EC's latest set of new ideas for the register negotiations. His delegation welcomed the EC's willingness to provide the additional information to the membership and looked forward to comparing how this new thinking would sit alongside the joint proposal.
26. On legal effect, his delegation had a few questions on the term "and in the absence of proof to the contrary". As already put forward by the Joint Proposal Group in question 23, would the newly proposed legal effect be really different from a presumption? Although the EC's representative had said that the concept of "rebuttable presumption" had been removed due to concerns expressed, and had been replaced by other terms, "prima facie evidence" and "in the absence proof to the contrary", it was not clear to his delegation that there was actually a substantive difference. Was that the understanding of all TN/C/W/52 proponents? He recalled the statement made by the EC on patents at the 3 March meeting of the regular session of the TRIPS Council in relation to an issue raised by India and Brazil that, when an IP right holder brought a case to a court, it would be up to him to prove the alleged infringement of IP rights. What the EC had said about patents equally applied to GIs. According to this principle, those controlling the GI in the country of origin would have to assert their IP rights in another jurisdiction. Against this background, his delegation was of the view that the legal effects proposed in TN/C/W/52 would be to reverse the burden of proof in favour of GI right holders, who would be able to prove an alleged infringement in other jurisdictions merely by pointing to a name recorded on a register in Geneva. Those opposing the GI would bear the burden of showing proof to the contrary. The clarifications requested by his delegation on the meaning of the terms "prima facie evidence", "proof to the contrary" and "substantiated" were contained in questions 24, 30 and 31.
27. He said that there was much clarity in the two types of answer given by the EC delegation. First, the meaning of the terms would be subject to negotiation and, second, their meaning could be determined by domestic legislation and procedures. If the meaning were to be determined by domestic procedures, it would be necessary to take some time in this Special Session to explore with key trading partners how these arrangements might be implemented under domestic procedures. His delegation would welcome comments from the key proponents of TN/C/W/52, e.g. the EC, China, India and Brazil. It would also be interesting to see how these provisions would apply in other key markets for New Zealand wine and spirits exports such as the United States, Australia and many countries in Asia. This sort of discussion would be crucial to a real understanding of what the EC's new thinking might mean in practice. He suggested that the Chairman invite Members to come prepared for a discussion at a future meeting of the Special Session.
28. Another question for the EC, which could be followed up in writing, was whether or not domestic procedures were paramount. If they were paramount, would it be correct to assume that the WTO dispute settlement mechanism would not apply? Should it apply, on what basis could a dispute be brought to the WTO, assuming that domestic procedures were TRIPS-consistent?
29. As regards the term "proof", he said that it was a stronger requirement than "evidence". It could be read to mean that any evidence provided must conclusively prove that the term did not satisfy the definition of a GI. That would effectively tie the domestic authorities' hands, requiring them to accept the name on the register as a GI unless there was conclusive proof to the contrary. This would remove the domestic authorities' discretion when evidence fell below the standard of proof, which in his view would interfere with the current domestic procedures. While acknowledging that the EC had, on page 8 of its paper, attempted to address this uncertainty by stating that this negotiating group could have a debate later about what "proof" meant or that the term might be left open for domestic authorities to define, his delegation continued to have concerns about that term, particularly in light of the reference to "evidence" in the modality proposal. His delegation would therefore definitely want to see this term further elaborated in a full legal text proposal.
30. The EC paper was not clear on who might provide the required proof. On the one hand, it referred to examination of the proof upon request and, on the other, it said that domestic authorities would be able to find out information on their own initiative. He asked the EC to confirm that its new thinking would allow domestic authorities to generate their own information as part of their assessment of whether a GI met the definition in their own territory, and that a third party with a legitimate trading or systemic interest could provide domestic authorities with relevant information.
31. On the issue of whether a name on the register enjoyed prima facie evidence that the registered GI met the definition of a GI under Article 22.1, the EC paper provided useful clarifications that the reference to "that Member" in the second sentence of paragraph 2 of TN/C/W/52 related to the Member consulting the register. For his delegation, this had clarified that the proposal cut across the key principle of territoriality, which applied to other IP rights. TN/C/W/52 would therefore require New Zealand to accept that the term recognized as being a GI in one jurisdiction would be a GI in all other jurisdictions. This was expressly acknowledged in the EC paper, which suggested that Article 23.1 of TRIPS need not be applied territorially. Was this view supported by all the other proponents of TN/C/W/52? His delegation agreed with the statements made by the representatives of Brazil, India and China in the regular session of the TRIPS Council that the principle of territoriality was the cornerstone of the international IPR system, including the TRIPS Agreement. For his delegation, the territoriality principle was particularly important for GIs as the domestic context would be highly relevant and could lead to quite different outcomes in different territories: a term might meet the definition of a GI in the EC but not in New Zealand. The EC had sought to rebut this territoriality argument on page 7 of its paper, which stated that "the entry of a GI in the GI Register will not result in automatic protection in any WTO Member". While the decision on the protection of a name would continue to remain entirely in the hands of domestic authorities and TN/C/W/52 no longer contained an irrebuttable presumption, domestic authorities would still have their hands tied. They would be required to accept that a term was a GI without undertaking the domestic examination process which currently was required and which was at the heart of the principle of territoriality to which many delegations attached importance. So, while it had been said that domestic authorities would be the ones to take decisions, the decisions would actually be made for them unless there was "proof to the contrary". As a result, the abandonment of the territoriality principle would elevate the status of GIs above all other IPRs, which would cause New Zealand serious concerns.
32. The proposed presumption would also cause problems in the case of conflicting claims on homonymous GIs. Members would be required to do the impossible, namely consider two mutually inconsistent presumptions.
33. His delegation had serious concerns about the EC new thinking regarding genericness in TN/C/W/52. This element would upset the delicate balance between Articles 23 and 24. The EC paper had claimed that the proposal did nothing more than encapsulate a general principle of good administration and common procedural requirements in Members' systems. He disagreed with this assertion, and said that, even if it were the case, why would it be necessary to amend the TRIPS Agreement with a new requirement on "substantiation"?
34. The EC had for some reason isolated the genericness exception as the only exception within Article 24 and added new requirements. His delegation would welcome details from the EC, India, Brazil and Switzerland regarding any enforcement problems that they were currently facing in relation to wines and spirits GIs due to the lack of an explicit requirement for substantiation of genericness. He asked whether the EC had the same concerns for the other exceptions of Article 24 as for the genericness one. The proposed new requirement regarding the exception of Article 24.6 on genericness would, in his delegation's view, alter the balance of rights and obligations within the TRIPS Agreement, which his delegation would oppose.
35. Finally, on participation or Member coverage, he said that there would still be a significant number of Members who would be very uncomfortable with the EC proposal for participation by all Members. The proposal would require them to establish a process to effectively provide protection for terms relating to products which they had chosen for economic, religious or moral reasons not to trade. To avoid any misunderstandings, his delegation wished to ask all the co-sponsors of TN/C/W/52 to confirm that they supported mandatory participation in the register of GIs for wines and spirits.
36. His delegation associated itself with Canada's characterization of the joint proposal: it was fully consistent with the mandate given by ministers and would also deliver good benefits in terms of the central focus of this Round, namely development. All of the problems his delegation was raising regarding legal consequences would be avoided by the joint proposal, which would fully respect the cornerstone of the TRIPS Agreement, namely the principle of territoriality. The joint proposal provided for voluntary participation, consistent with the mandate, and would also be more development-friendly as it would not force Members with no, or limited, capacity to, trade in wines and spirits to take on the costs and burdens of implementing a register.
37. Finally, he reminded the Special Session that its mandate was limited to wine and spirit GIs.
